APPENDIX 9
Supplementary memorandum by Professor
Sir Adam Roberts (December 2002)
The laws of warthe parts of international
law explicitly applicable in armed conflicthave a major
bearing on the "war on terror" proclaimed and initiated
by the US following the attacks of 11 September 2001. They address
a range of critical issues that perennially arise in campaigns
against terrorist movements, including discrimination in targeting,
protection of civilians, and status and treatment of prisoners.
However, the application of the laws of war in counter-terrorist
operations has always been particularly problematical. Because
of the character of such operations, different in important respects
from what was originally envisaged in the treaties embodying the
laws of war, a key issue in any analysis is not just whether or
how the law is applied by the belligerents, but also its relevance
to the particular circumstances of the operations. It is not just
the conduct of the parties that merits examination, but also the
adequacy of the law itself. Thus there is a need to look at the
actual events of wars involving a terrorist adversary, and at
the many ways in which, rightly or wrongly, the law is considered
to have a bearing on them.
The present survey critically examines not only
certain statements and actions of the US administration, but also
those of the International Committee of the Red Cross (ICRC) and
certain other bodies concerned with humanitarian and human rights
issues. While touching on many ways in which the laws of war impinge
on policy, the main focus is on the following four core questions.[68]
Are the laws of war, according to
their specific terms, applicable to counter-terrorist military
operations?
In the event that counter-terrorist
military operations involve situations different from those envisaged
in international agreements on the laws of war, should the attempt
still be made to apply that body of law to such situations?
Are captured personnel who are suspected
of involvement in terrorist organizations entitled to prisoner-of-war
(PoW) status? If they are not considered to be PoWs, does the
law recognize a different status, and what international standards
apply to their treatment?
Is there a case for a revision of
the laws of war to take into account the special circumstances
of contemporary counter-terrorist operations?
The answers to these questions may vary in different
circumstances. The US-led "war on terror" involves action
in many countries, with different legal and factual contexts.
By no means does all action against terrorism, even if part of
the "war on terror", involve military action in any
form, let alone armed conflict of the kind in which the laws of
war are formally applicable. The war's most prominent military
manifestation to date, and the focus of this survey, is the coalition
military action in Afghanistan that commenced on 7 October 2001
and still continues. While certain phases and aspects of Operation
Enduring Freedom have involved an international armed conflict,
unquestionably bringing the laws of war into play, other phases
and aspects are more debatable with respect to the application
of this body of law.
The laws of war are not the only body of law
potentially relevant to the consideration of terrorist and counter-terrorist
actions. For example, in many cases terrorist acts would indeed
be violations of the laws of war if they were conducted in the
course of an international or an internal armed conflict. However,
because they frequently occur in what is widely viewed as peacetime,
the illegality of such acts has to be established first and foremost
by reference to the national law of states; international treaties
on terrorism and related matters;[69]
and other relevant parts of international law (including parts
of the laws of war) that apply in peacetime as well as wartime,
for example the rules relating to genocide, crimes against humanity
and certain rules relating to human rights. All of these legal
categories are relevant to consideration of the attacks of 11
September. For example, the attacks constitute murder under the
domestic law of states, and at the same time can be regarded as
`crimes against humanity', a category which encompasses widespread
or systematic murder committed against any civilian population.[70]
This survey is divided into six parts.
1. The laws of war
2. Counter-terrorist military operations
3. War in Afghanistan
4. Prisoners
5. Further development of the law
6. Conclusions
1. THE LAWS
OF WAR
The laws of war (also referred to as "jus
in bello" and `international humanitarian law applicable
in armed conflict') are embodied and interpreted in a variety
of sources: treaties, customary law, judicial decisions, writings
of legal specialists, military manuals and resolutions of international
organizations. Although some of the law is immensely detailed,
its basic principles are simple: the wounded and sick, PoWs and
civilians are to be protected; military targets must be attacked
in such a manner as to keep civilian casualties and damage to
a minimum; humanitarian and peacekeeping personnel must be respected;
neutral or non-belligerent states have certain rights and duties;
and the use of certain weapons (including chemical weapons) is
prohibited, as also are certain other means and methods of warfare.
The four 1949 Geneva Conventionsthe treaties that form
the keystone of the modern laws of warare concerned largely
with the protection of victims of war who have fallen into the
hands of an adversary, as distinct from the conduct of military
operations.[71]
Treaties on the laws of war are the product
of negotiations between states, and reflect their experiences
and interests, including those of their armed forces. For centuries
these rules, albeit frequently the subject of controversy, have
had an important function in the policies and practices of states
engaged in military operations. With respect to international
coalitions involved in combat, given the needs of the members
to harmonize their actions on a range of practical issues, these
rules have long had particular significance. Even in situations
in which their formal applicability may be questionable, they
have sometimes been accepted as relevant guidelines.
Scope of application
The laws of war have a scope of application
that is not limited to wars between recognized states. They apply
in a wide, but not infinitely wide, variety of situations. In
the 1949 Geneva Conventions, Common Article 1 specifies that the
parties "undertake to respect and to ensure respect for the
present Convention in all circumstances".[72]
Common Article 2, which deals directly with scope of application,
specifies that the Conventions "apply to all cases of declared
war or of any other armed conflict which may arise between two
or more of the High Contracting Parties, even if the state of
war is not recognized by one of them", indicating that the
existence or non-existence of a declaration of war, or a formal
state of war, is not necessary for the application of the Conventions.
Common Article 3 contains certain minimum provisions to be applied
in the case of armed conflict not of an international character,
concentrating particularly on treatment of persons taking no active
part in hostilities. Certain other agreements, especially those
concluded since the early 1990s, apply in non-international as
well as international armed conflicts.
The distinction that has traditionally been
drawn in the laws of war between international and non-international
armed conflict has come under challenge in the post-1945 era.
This is not only because many wars have involved elements of both
civil and international war, but also because of the nature of
counter-terrorist operations. These have aspects that are similar
to a civil war, particularly as they typically involve governmental
forces combating non-governmental groups; but they may not meet
all the criteria (such as the holding of territory by insurgents)
required for the application of parts of the law governing non-international
armed conflict; and they can also have aspects that are more closely
akin to international war, especially if the terrorists operate
in armed units outside their own countries.
Application of the law is not necessarily dependent
on formal designation of a conflict as international or non-international.
In some instances, as indicated below, the UN Security Council
or particular belligerents have deemed the rules governing international
armed conflict to be applicable even to a largely internal situation.
The US armed forces have indicated their intention to observe
the rules governing international armed conflicts even in situations
that may differ in certain respects from the classical model of
an inter-state war. The Standing Rules of Engagement issued by
the US Joint Chiefs of Staff spell this out:
US forces will comply with the Law of War during
military operations involving armed conflict, no matter how the
conflict may be characterized under international law, and will
comply with its principles and spirit during all other operations.[73]
In certain inter-state conflicts, Western armed
forces, engaging with adversaries showing at best limited respect
for ethical and legal restraints, have managed to observe basic
rules of the laws of war. This was the case in the 1991 Gulf War,
in which Iraq mistreated prisoners, despoiled the environment
and had to be warned in brutally clear terms not to engage in
chemical or biological attacks and terrorist operations. The US-led
Gulf coalition sought to observe the law not because of any guarantee
of reciprocity, but because such conduct was important to the
ethos of the armed forces; and because it contributed to the maintenance
of internal discipline, and of domestic and international support.
Similar conclusions could be drawn from the 1999 Kosovo War. In
short, practice has provided some evidence in support of the legal
position that reciprocity with one adversary in one particular
conflict is far from being a necessary condition for observing
the laws of war.
Whether all aspects of counter-terrorist operations
fall within the scope of application of the laws of war will be
explored further in Part 2 below.
Jus ad bellum and jus in bello
In any armed conflict, including one against
terrorism, it is important to distinguish between the legality
of resorting to force and the legality of the way in which such
force is used. In strict legal terms, the law relating to the
right to resort to the use of force (jus ad bellum) and
the law governing the actual use of force in war (jus in bello)
are separate. The jus in bello applies to the conduct of
belligerents in international armed conflict irrespective of their
right to resort to the use of force under the jus ad bellum.
As regards the jus ad bellum issues raised after 11 September,
my own views are in favour of the legality, and indeed overall
moral justifiability, of the military action in Afghanistan. However,
this survey's focus is on the jus in bello aspects of the
US-led military operations.
Despite the lack of a formal connection between
jus ad bellum and jus in bello, there are certain ways in which
they interact in practice, especially in a war against terrorists.
By observing jus in bello, a state or a coalition of states may
contribute to perceptions of the justice of a cause in three related
ways. First, in all military operations, whether or not against
terrorists, the perception that a state or a coalition of states
is observing recognized international standards may contribute
to public support domestically and internationally. Second, if
the coalition were to violate jus in bello in a major way,
for example by the commission of atrocities, that would be likely
to advance the cause of the adversary forces, arguably providing
them a justification for their resort to force. Third, in counter-terrorist
campaigns in particular, a basis for engaging in military operations
is often a perception that there is a definite moral distinction
between the types of actions engaged in by terrorists and those
engaged in by their adversaries. Observance of jus in bello can
form a part of that moral distinction.
However, the jus ad bellum rationale
that armed hostilities have been initiated in response to major
terrorist acts can raise issues relating to the application of
certain jus in bello principles. Two such issues are explored
here: first, whether there is scope for neutrality in relation
to an armed conflict in which one side is fighting in the name
of opposing terrorism; second, whether those responsible for terrorist
campaigns can be viewed as exclusively responsible for all the
death and destruction of an ensuing war.
The right of states to be neutral in an armed
conflict is a long-standing principle of the laws of war. Events
of the past century, especially the obligations imposed by membership
of international organizations, have exposed problems in the traditional
idea of strictly impartial neutrality and have led to its modification
and even erosion. In many conflicts there were states which, even
while not belligerents, pursued policies favouring one side, for
example joining in sanctions against a state perceived to be an
aggressor. The UN Charter, by providing for the Security Council
to require all states to take certain actions against offending
states, added to the erosion of traditional concepts of neutrality,
at least in those cases in which the Security Council has been
able to agree on a common course of action (eg sanctions). The
importance of new forms of non-belligerence, distinct from traditional
neutrality, may help to explain the emergence of terms such as
`neutral or non-belligerent powers' in post-1945 treaties on the
laws of war.[74]
In many recent episodes, including the 1991 Gulf War and the 1999
Kosovo War, when the use of armed force by a coalition has been
combined with the application of general UN sanctions against
the adversary state, the scope for traditional (ie impartial)
neutrality has indeed been limited, but certain forms of non-belligerence
have survived. As outlined below in Part 3, on War in Afghanistan,
the "war on terror" which began in 2001 with Operation
Enduring Freedom would confirm that in certain armed conflicts,
particularly when the UN Security Council has given approval to
one party, the scope for neutrality may be limited or non-existent.
Can those who initiated terrorist campaigns
be held responsible for all the death and destruction of an ensuing
war? When fighting terrorism is the basis for resorting to war
under the jus ad bellum, there is sometimes a tendency
for the general indignation caused by terrorist attacks to affect
adversely the implementation of jus in bello. It is sometimes
argued that because the terrorists started the war they are responsible
for all the subsequent horrors. In early December 2001, discussing
civilian casualties, US Secretary of Defense Donald Rumsfeld said:
"We did not start this war. So understand, responsibility
for every single casualty in this war, whether they're innocent
Afghans or innocent Americans, rests at the feet of the al-Qaeda
and the Taliban".[75]
Such a view, if it implies that the peculiar circumstances involved
in the jus ad bellum might override certain considerations
of jus in bello in the war that follows, has no basis in the law.
Proportionality
"Proportionality" is a long-established
principle that sets out criteria for limiting the use of force.
One of its meanings relates to the proportionality of a military
action compared to a grievance, and thus constitutes a further
link between jus in bello and jus ad bellum. It
involves a complex balance of considerations. It would be incorrect
to interpret this principle to imply a right of tit-for-tat retaliation.
For example, it would be legally unjustified for a military response
to a terrorist act to have the objective of killing the same number
of people, and there was no indication that this was a coalition
objective in Afghanistan. Nor does this principle prevent a response
from taking into account a range of issues not limited to the
size of the initial attack.[76]
The other main meaning of proportionality relates
to the actual conduct of ongoing hostilities. As a US Army manual
succinctly interprets it, "the loss of life and damage to
property incidental to attacks must not be excessive in relation
to the concrete and direct military advantage expected to be gained"[77].
This meaning of proportionality (which is not directly linked
to jus ad bellum) is often difficult to apply in armed
conflict, especially in counter-terrorist operations. It may,
but does not necessarily, limit the use of force to the same level
or amount of force as that employed by an adversary. It exists
alongside the principle of military necessity, which is defined
in the US Army manual as one that "justifies those measures
not forbidden by international law which are indispensable for
securing the complete submission of the enemy as soon as possible"[78].
The principle of proportionality is therefore in tension, but
not necessarily in conflict, with the current US military doctrine,
which favours the overwhelming use of force in order to achieve
decisive victory quickly and at minimum cost in terms of US casualties.[79]
2. COUNTER-TERRORIST
MILITARY OPERATIONS
Counter-terrorism has been defined as "offensive
military operations designed to prevent, deter and respond to
terrorism".[80]
Such operations, including those resulting from the events of
11 September, may involve inter-state armed conflict as principally
envisaged in the laws of war: in such cases that body of law applies
straightforwardly. However, such operations can also involve conflict
with other characteristicsa fact that helps to explain
why the laws of war have often proved difficult to apply in them.
Six factors, all relating to the nature of the opposition, point
to potential problems in the application of the laws of war in
counter-terrorist operations:
Neither all terrorist activities,
nor all counter-terrorist military operations, even when they
have some international dimension, necessarily constitute armed
conflict between states. Terrorist movements themselves generally
have a non-state character. Therefore military operations between
a state and such a movement, even if they involve the state's
armed forces acting outside its own territory, are not necessarily
such as to bring them within the scope of application of the full
range of provisions regarding international armed conflict in
the 1949 Geneva Conventions and the 1977 Geneva Protocol I.[81]
Counter-terrorist operations may
assume the form of actions by a government against forces operating
within its own territory; or, more rarely, may be actions by opposition
forces against a government perceived to be committing or supporting
terrorist acts. In both these cases, the conflict may have more
the character of non-international armed conflict (that is, civil
war) as distinct from international war. Fewer laws-of-war rules
have been formally applicable to civil as distinct from international
war, although the situation is now changing in some respects.
In many cases, the attributes and
actions of a terrorist movement may not come within the field
of application even of the modest body of rules relating to non-international
armed conflict. Common Article 3 of the 1949 Geneva Conventions
is the core of these rules, but says little about the scope of
application. The principal subsequent agreement on non-international
armed conflict, the 1977 Geneva Protocol II, is based on the assumption
that there is a conflict between a state's armed forces and organized
armed groups which, under responsible command, exercise control
over a part of its territory, and carry out sustained and concerted
military operations. The protocol expressly does not apply to
situations of internal disturbance and tension, such as riots,
and isolated and sporadic acts of violence.[82]
Since terrorist forces often have
little regard for internationally agreed rules of restraint, the
resolve of the counter-terrorist forces to observe them may also
be weakened, given the low expectation of reciprocity and the
tendency of some part of the public under attack to overlook any
breaches by their own forces.
A basic principle of the laws of
war is that attacks should be directed against the adversary's
military forces, rather than against civilians. This principle,
violated in terrorist attacks specifically directed against civilians,
can be difficult to apply in counter-terrorist operations, because
the terrorist movement may not be composed of defined military
forces that are clearly distinguished from civilians.
Some captured personnel who are members
of a terrorist organization may not meet the criteria for PoW
status as set out in 1949 Geneva Convention III. (The question
of prisoners is discussed in greater detail below.)
These six factors reflect the same underlying
difficulty governments have in applying the laws of war to civil
wars, namely, that the opponent tends to be viewed as a criminal,
without the right to engage in combat operations. This factor
above all explains why, despite the progress of recent decades,
many governments are doubtful about, or opposed to, applying the
full range of rules applicable in international armed conflict
to operations against rebels and terrorists.
For at least 25 years, the US has expressed
a concern, shared to some degree by certain other states, regarding
the whole principle of thinking about terrorists and other irregular
forces in a laws-of-war framework. To refer to such a framework,
which recognizes rights and duties, might seem to imply a degree
of moral acceptance of the right of any particular group to resort
to acts of violence, at least against military targets.[83]
Successive US administrations have objected to certain revisions
to the laws of war on the grounds that they might actually favour
guerrilla fighters and terrorists, affording them a status that
the US believes they do not deserve. The strongest expression
of this view was a letter of 29 January 1987 explaining why the
administration was not recommending Senate approval of 1977 Geneva
Protocol I additional to the 1949 Geneva Conventions. The letter
mentioned that granting combatant status to certain irregular
forces "would endanger civilians among whom terrorists and
other irregulars attempt to conceal themselves". It indicated
a concern that the provisions would endanger US soldiers, and
stated in very general terms that "the Joint Chiefs of Staff
have also concluded that a number of the provisions of the protocol
are militarily unacceptable". US repudiation of the protocol
would be an important move against "the intense efforts of
terrorist organizations and their supporters to promote the legitimacy
of their aims and practices".[84]
Whether all this was based on a fair interpretation of 1977 Protocol
I is the subject of impassioned debate that is beyond the scope
of this survey. The key point is the US concernwhich has
not changed fundamentally in the years since 1987that the
laws of war might be misused by some in order to give an unwarranted
degree of recognition to guerrillas and terrorists.
Application of the law in previous operations
In many counter-terrorist campaigns since 1945
issues relating to the observance or non-observance of basic rule
of the laws of war have perennially been of considerable significance.
This has been the case both when a counter-terrorist campaign
has been part of an international armed conflict, and when such
a campaign has been a largely internal matter, conducted by a
government within its own territory, in a situation which may
not cross the threshold to be considered an armed conflict. In
such circumstances the laws of war may be of limited formal application,
but their underlying principles, as well as other legal and prudential
limits, are important. Within functioning states, terrorist campaigns
have often been defeated through slow and patient police work
(sometimes with military assistance) rather than major military
campaigns; for example, the actions against the Red Army Faction
in Germany and the Red Brigades in Italy in the 1970s.
The British military and police operation against
"Communist Terrorists" in Malaya after 1948 is an example
(in a colonial context) of a long-drawn-out and patient counter-terrorist
campaign that was eventually successful. One of the key military
figures involved in that campaign, Sir Robert Thompson, distilling
five basic principles of counter-insurgency from this and other
cases, wrote of the crucial importance of operating within a properly
functioning domestic legal framework:
Second principle. The government must function
in accordance with law.
There is a very strong temptation in dealing
both with terrorism and with guerrilla actions for government
forces to act outside the law, the excuses being that the processes
of law are too cumbersome, that the normal safeguards in the law
for the individual are not designed for an insurgency and that
a terrorist deserves to be treated as an outlaw anyway. Not only
is this morally wrong, but, over a period, it will create more
practical difficulties for a government than it solves.[85]
The United Kingdom's long engagement against
terrorism in Northern Ireland, although in an essentially internal
situation, provides one precedent for affording treatment based
on certain international rules to prisoners whose status is contested.
This was one of many conflicts in which those deemed to be `terrorists'
were aware of the value, including propaganda value, of making
claims to PoW status. While denying that there was an armed conflict
whether international or otherwise, and strongly resisting any
granting of PoW status to detainees and convicted prisoners, the
UK did come to accept that international standards had to apply
to their treatment. The minority report of a UK Commission of
Inquiry in 1972 which led to this conclusion is an interesting
example of asserting the wider relevance, even in an internal
conflict, of certain international legal standards, including
some from the main body of the four 1949 Geneva Conventions.[86]
The UK government's acceptance of this approach was only a decision,
not a complete solution to a matter that continued to be contentious.
Questions about the status and treatment of
prisoners, some of whom were considered as terrorists, also arose
during the US involvement in Vietnam. In 1967-68 the US took a
judiciously inclusive approach to the matter when it issued directives
to classify Viet Cong main force and local force personnel, and
certain Viet Cong irregulars, as PoWs. This was despite the existence
of doubts and ambiguities as to whether these forces met all the
criteria in Article 4 of 1949 Geneva Convention III. Viet Cong
irregulars were to be classified as PoWs if captured while engaging
in combat or a belligerent act under arms, "other than an
act of terrorism, sabotage, or spying". There was provision
for establishing tribunals, in accordance with Article 5 of the
Geneva Convention, to determine, in doubtful or contested cases,
whether individual detainees were entitled to PoW status.[87]
One example of a counter-terrorist military
campaign, the 1982-2000 Israeli presence in Lebanon, shows the
importance of legal restraints in counter-terrorist operations,
and the hazards that can attend a failure to observe them. This
episode has certain similarities to the case of Afghanistan in
2001-02, as well as some obvious differences. Israel's June 1982
invasion of Lebanon was explicitly in response to "constant
terrorist provocations", including, since July 1981, "150
acts of terrorism instigated by the PLO, originating in Lebanon,
against Israelis and Jews in Israel and elsewhere: in Athens,
Vienna, Paris and London". Israel said that if Lebanon was
unwilling or unable to prevent the harbouring, training and financing
of terrorists, it must face the risk of counter-measures.[88]
The invasion led to the attacks on the inhabitants of Sabra and
Shatila refugee camps outside Beirut in September 1982 by Israel's
local co-belligerents, the Lebanese Phalangists. At the lowest
estimates, several hundred Palestinians in the camps, including
many women and children, were killed. This event aroused strong
opposition internationally, and also in Israel. The Israeli authorities
established a Commission of Inquiry, which concluded that, while
the Phalangist forces were directly responsible for the slaughter,
Israel bore indirect responsibility.[89]
During the whole period of Israeli military involvement in Lebanon,
the treatment of alleged terrorist detainees also caused controversy.
Israel opposed granting them PoW status on the grounds that as
terrorists they were not entitled to it. The detainees were held
in very poor conditions in notorious camps, including al-Khiam
(run by the Israeli-created South Lebanese Army) and al-Ansar
(run by the Israel Defence Forces).[90]
The Israeli military presence in Lebanon received extensive criticism
internationally and in Israel, and it cost many lives among the
Israel Defence Forces as well as their adversaries and in the
civilian population. It ended with a unilateral Israeli withdrawal
in May 2000.
Evidence from past campaigns suggests that while
the application of the law may be particularly difficult in counter-terrorist
operations, it cannot be neglected. Some failures to observe legal
restraints have been instructive. In military operations with
the purpose of stopping terrorist activities, there has been a
tendency for counter-terrorist forces to violate basic legal restraints.
There have been many instances in which prisoners were subjected
to mistreatment or torture. In some cases, excesses by the government
or by intervening forces supporting the government may have had
the unintended effect of assisting a terrorist campaign. Applying
pressure on a government or army to change its approach to counter-terrorism,
to bring it more into line with the laws of war and human-rights
law, can be a difficult task.
In a counter-terrorist war, as in other wars,
there can be strong prudential considerations that militate in
favour of observing legal standards, which are increasingly seen
as consisting of not only domestic legal standards, but also international
ones, including those embodied in the laws of war. These considerations
include securing public and international support; ensuring that
terrorists are not given the propaganda gift of atrocities or
maltreatment by their adversaries; maintaining discipline and
high professional standards in the counter-terrorist forces; and
assisting reconciliation and future peace. Such considerations
may carry great weight even in conflicts, or particular episodes
within them, which differ from what is envisaged in the formal
provisions regarding scope of application of relevant treaties.
These considerations in favour of observing the law may be important
irrespective of whether there is reciprocity in such observance
by all the parties to a particular war. However, it is not realistic
to expect that the result of the application of such rules will
be a sanitized form of war in which civilian suffering and death
is eliminated.
3. WAR IN
AFGHANISTAN
In wars in Afghanistan over the centuries, conduct
has differed markedly from that permitted by the written laws
of war. These wars always had a civil war dimension, traditionally
subject to fewer rules in the laws of war; and guerrilla warfare,
already endemic in Afghanistan in the nineteenth century, notoriously
blurs the traditional distinction between soldier and civilian
that is at the heart of the laws of war. Some local customs, for
example regarding the killing of prisoners and looting, are directly
contrary to long-established principles of the law. Other customs
are different from what is envisaged by the law, but are not necessarily
a violation of it: for example, the practice of soldiers from
the defeated side willingly joining their adversary rather than
being taken prisoner. In some cases, conduct has been consistent
with international norms: for example, the ICRC had access to
some prisoners during the Soviet intervention. Overall, however,
compliance with the laws of war has been limited.
From the start, the implementation of the laws
of war posed a problem for Operation Enduring Freedom.[91]
Difficult practical issues facing the coalition included: the
problem of conducting operations discriminately against elusive
enemies; the possibility that adversary forces might mistreat
or execute coalition prisoners; the possibility that some enemy
personnel facing capture might be reluctant to surrender their
weapons, and that they might not meet the criteria for PoW status;
the urgent need for humanitarian relief operations during ongoing
war; and maintenance of order (and avoidance of looting and revenge
killings) in liberated towns. These problems were exacerbated
by the character of the coalition's local partner, the Northern
Alliance.[92]
The number of different forces involved, many of which were under
the command of local warlords, and the lack of clear structures
of authority, decision-making and military discipline within them,
militated against the implementation of international norms.
The active role of the media in this war ensured
that many of these issues were heavily publicized. Reporters operated
close to, and even in front of, the front lines, sending back
reports and high-resolution pictures as events unfolded. Up to
the end of January 2002, more reporters died while covering the
war in Afghanistan than non-Afghan coalition military personnel.[93]
As in other modern wars, the press played a critical role in repeatedly
raising matters germane to the laws of war.
This part deals mainly with the war in Afghanistan
after the beginning of major US military action there on 7 October
2001. It cannot explore all the issues relating to the laws of
war that have cropped up in regard to Afghanistan. It considers
the applicability of the laws of war to the various aspects of
this armed conflict generally, glances at the limited scope for
neutrality, and then surveys three specific issues that were raised
in the war: bombing; gas; and humanitarian assistance and refugee
matters. Prisoners are considered in Part 4.
Applicability of the laws of war to the armed
conflict
An armed conflict in Afghanistanprincipally
between the Taliban and Northern Alliance forceshad been
going on for many years before the events of 11 September 2001.
The UN Security Council had called on both parties to comply with
their obligations under international humanitarian law. Like a
similar resolution on Bosnia six years earlier, a 1998 UN Security
Council Resolution on Afghanistan reaffirmed:
that all parties to the conflict are bound to
comply with their obligations under international humanitarian
law and in particular the Geneva Conventions of 12 August 1949
and that persons who commit or order the commission of grave breaches
of the Conventions are individually responsible in respect of
such breaches.[94]
The reference to grave breaches would appear
to suggest that the Security Council viewed all the rules of the
1949 Geneva Conventions as applicable, and not just common Article
3, which deals with civil war. Thus, three years before it became
directly involved, the US as well as other powers viewed the laws
of war as applicable to the Afghan conflict.[95]
Like the period of Soviet intervention of 1979-89,
and indeed wars in many countries in the period since 1945, the
armed conflict in Afghanistan from 7 October 2001 can perhaps
be best characterized as "internationalized civil war".
This is not a formal legal category, but an indication that the
rules pertaining to both international and civil wars may be applicable
in different aspects and phases of the conflict.
Major aspects of the war in Afghanistan have
been international in character. Following the attacks of 11 September
2001, the UN Security Council adopted resolution 1368, recognizing
the right of individual or collective self-defence and condemning
international terrorism as a threat to international peace and
security. This and the more detailed resolution 1373 recognized
the international dimensions of the struggle against terrorism.[96]
During the period October-December 2001 there was an international
armed conflict between the US-led coalition on the one side, and
the Taliban and al-Qaeda on the other. Following the fall of the
Taliban regime, and the accession to power of the Afghan Interim
Authority on 22 December 2001, the coalition's role was essentially
that of aiding a government, but in a struggle that was at least
partly international. Even after the convening of the Loya Jirga
in Kabul in June 2002 and the establishment of the Afghan Transitional
Government on 19 June, coalition (including Afghan) forces were
engaged not only against Taliban or other mainly Afghan forces,
but also against certain non-Afghan forces, especially al-Qaeda.
Despite the fact that al-Qaeda lacked the structure of a state,
the continuing hostilities with it could still be understood as
part of an international armed conflict. This coalition military
action was separate from the assistance to the government in maintaining
security in Kabul and surrounding areas through the International
Security Assistance Force (ISAF).[97]
On the technical legal question as to which
of the main laws of war treaties were formally binding on the
belligerents in the international armed conflict between the US-led
coalition and the Taliban regime in Afghanistan in October-December
2001, the 1907 Hague Convention IV on land warfare applied because
of its status as customary law, thereby binding on all states
whether or not parties to the treaty. In addition, Afghanistan
and the main members of the international coalition were parties
to the following agreements:
the 1925 Geneva Protocol on gas and
bacteriological warfare;
the 1948 Genocide Convention;
the four 1949 Geneva Conventions.
Some of the states involved were, or later became,
parties to certain additional agreements.[98]
However, the above-named treaties provide the basic treaty framework
for considering the application of the law in the armed conflict
that commenced in October 2001. In addition, rules of customary
international law applied. Apart from the provisions of customary
law embodied in the agreements indicated above, certain provisions
of some later agreements, including 1977 Geneva Protocol I, are
accepted as having that status.
As regards civil-war aspects of the Afghan war,
some but not all of the provisions of the agreements listed above
apply. The 1907 Hague Land War Convention's Article 2 indicates
that the convention and its annexed regulations apply only to
wars between states. The 1925 Geneva Protocol is not formally
applicable to civil wars.[99]
The 1948 Genocide Convention is considered to apply to non-international
as well as international armed conflict. In the 1949 Geneva Conventions,
common Article 3 lists certain minimum provisions for humane treatment
of those taking no active part in hostilities that are to be applied
in non-international armed conflict. However, the UN Security
Council's 1998 resolution had called for application of the Geneva
Conventions more generally.
Following the events of 11 September 2001, when
it was evident that an armed conflict between the coalition and
the Taliban regime was likely, the ICRC, consistent with its general
practice, sent messages to certain governments reminding them
of their obligations under international humanitarian law. Unfortunately
these messages contained some debatable interpretations of the
law. They put less reliance on binding treaty law than on provisions
of 1977 Geneva Protocol I, to which neither the US nor Afghanistan
was a party, and not all of the provisions of which that were
cited can plausibly be claimed to be "recognized as binding
on any Party to an armed conflict", as the messages optimistically
asserted. Furthermore, in the first of what would be many clashes
between humanitarian bodies and national governments in this crisis,
the ICRC messages to the US and UK governments stated: "The
use of nuclear weapons is incompatible with the provisions of
International Humanitarian Law."[100]
Although beyond the scope of this survey, this was undoubtedly
wrong as a statement of law. Following strong US and UK objections
a revised text was sent, in which the offending wording was changed
to the bland formula: "On the subject of nuclear weapons,
the ICRC confirms its position as expressed in its Commentary
on the 1977 Additional Protocols." In its message to the
Afghan authorities the ICRC indicated that the civil war in Afghanistan
was governed primarily by the provisions applicable to non-international
armed conflicts.[101]
This reflected the ICRC view that there were two conflicts in
Afghanistan (Coalition v. Taliban; and Taliban v. Northern Alliance)
to which two different branches of law applied. However, this
was a surprising stance in view of the strong view about the application
of the 1949 Geneva Conventions to the situation in Afghanistan
that had been expressed by the UN Security Council in August 1998.
The ICRC subsequently issued some public statements on the application
of the laws of war in this crisis, reminding all the parties involvedthe
Taliban, the Northern Alliance and the US-led coalitionof
their obligations to respect the law, and stating that the ICRC
was continuing a wide range of activities inside Afghanistan.
One ICRC statement was explicit that "combatants captured
by enemy forces in the international armed conflict between the
Taliban and the US-led coalition must be treated in accordance
with the Third Geneva Convention", implying that other aspects
of the war in Afghanistan did not rise to the level of international
armed conflict, and that captured personnel in that aspect of
the war would have a different and perhaps lesser degree of protection.[102]
In November 2002 the ICRC communicated to concerned
countries its conclusion that from 19 June 2002 onwards the armed
conflict in Afghanistan was no longer an international armed conflict
but an internal one, covered by common Article 3 of the 1949 Geneva
Conventions rather than by the more comprehensive regime of the
conventions as a whole. This conclusion was not persuasive. It
appeared to ignore the continuing involvement of certain non-Afghan
forces, especially al-Qaeda, inside Afghanistan, and the possible
continued involvement in terrorist attacks world-wide of that
and other bodies operating in Afghanistan; it failed to note the
implications in earlier UN Security Council resolutions that the
conflict was international, and/or that the Geneva Conventions
were applicable to it; and its issuance marked a departure from
previous ICRC practice of adopting a low profile approach to the
legal characterization of situations with characteristics of both
international and internal armed conflict.[103]
Lack of scope for neutrality
The circumstances of the war against al-Qaeda
and the Taliban were such that little or no room was left for
states to adopt a policy of traditional (ie impartial) neutrality,
the stresses on which in wars in the twentieth century were already
noted above. The lack of scope for neutrality was especially marked
because al-Qaeda operates in numerous states, and all states have
been required by the UN to take a range of measures against it.
The resolution passed by the UN Security Council in 1999 on the
subject of the Taliban regime in Afghanistan, condemning its support
of terrorism and its refusal to hand over Osama bin Laden, had
already required all states to take action against the Taliban
and against Osama bin Laden and associates.[104]
The UN Security Council's resolutions of 12 and 28 September 2001
required all states to take a wide range of actions against terrorism.
In his 20 September address to Congress President George W. Bush
framed the obligations on states in blunter and more US-centred
terms:
Every nation, in every region, now has a decision
to make. Either you are with us, or you are with the terrorists.
From this day forward, any nation that continues to harbor or
support terrorism will be regarded by the United States as a hostile
regime.[105]
It is evident that the scope for traditional
neutrality was implicitly understood by the Security Council,
and explicitly proclaimed by the US, to be very limited in the
overall counter-terrorist campaign. Naturally, some states, including
Iran, proclaimed that they were "neither with Bush nor bin
Laden"; and not all states were willing to assist the US-led
military action directly. It would be absurd to claim that all
forms of non-belligerence are dead, but the particular understanding
of neutrality in the written laws of war is further called in
question by the character of the "war on terror".
Bombing
The development by US and allied forces of techniques
of bombing that are more accurate than in previous eras has improved
the prospects of certain air campaigns being conducted in a manner
that is compatible with the long-established laws-of-war principle
of discrimination;[106]
and with the more specific rules about targetingrules which
themselves have changed, not least in 1977 Geneva Protocol I.
This is a momentous development in the history of war, yet its
effects, especially as regards operations against terrorists,
should not be exaggerated, as it cannot guarantee either success
or no deaths of innocents. Precision-guided weapons are generally
better at hitting fixed objects, such as buildings, than moving
objects that can be concealed, such as people and tanks. Civilian
deaths will still occur, whether because certain dual-use targets
are attacked, because of the close proximity of military targets
to civilians, or because of faulty intelligence and human or mechanical
errors. In addition, malevolence and callousness can still lead
to attacks on the wrong places or people. A further problem with
the new type of US bombing campaign is that, in the eyes of third
parties, it can easily look as if the US puts a lower value on
the lives of Iraqis or Serbs or Afghans than it does on its own
almost-invulnerable aircrews: a perception which can feed those
hostile views of the US that help to provide a background against
which terrorism can flourish.
Announcing the start of military strikes against
Afghanistan on 7 October 2001, President Bush stated: "There
carefully targeted actions are designed to disrupt the use of
Afghanistan as a terrorist base of operations and to attack the
military capability of the Taliban regime."[107]
The principle that the bombing of Afghanistan should be discriminate
was frequently repeated. On 21 October, General Richard B. Myers,
the Chair of the Joint Chiefs of Staff, said:
The last thing we want are any civilian casualties.
So we plan every military target with great care. We try to match
the weapon to the target and the goal is, one, to destroy the
target, and two, is to prevent any what we call "collateral
damage" or damage to civilian structures or civilian population.[108]
From the start of the campaign in Afghanistan
the US was particularly sensitive about accusations that it acted
indiscriminately. In late October Rumsfeld accused the Taliban
and al-Qaeda leaders of both causing and faking civilian damage:
"They are using mosques for command and control, for ammunition
storage, and they're not taking journalists in to show that. What
they do is when there's a bomb goes down, they grab some children
and some women and pretend that the bomb hit the women and the
children."[109]
What truth there was in all this remains difficult to determine.
About 60% of the 22,000 US bombs and missiles
dropped in Afghanistan were precision-guided: the highest percentage
in any major bombing campaign. If, as reported, only one in four
bombs and missiles dropped by the US on Afghanistan missed its
target or malfunctioned in some way, the 75% success rate was
higher than that achieved in the 1991 Gulf War and the 1999 Kosovo
War.[110]
This was a remarkable achievement.
The bombing aroused much international concern.
There were reports of many attacks causing significant civilian
casualties and damage. Accuracy in hitting the intended target
area did not itself necessarily eliminate such problems. An ICRC
warehouse in Kabul was hit twice, on 16 and 26 October, leading
to serious questions about failure to ensure that target lists
were properly prepared and, after the first well-publicized disaster,
amended.[111]
The episode was subsequently investigated by the Pentagon.[112]
Some later incidents were even more serious. For example, according
to press reports over a hundred villagers may have died in bombings
on 1 December 2001 of Kama Ado and neighbouring villages in eastern
Afghanistan, not far from the cave complex at Tora Bora.[113]
On 1 July 2002, during an operation to hunt Taliban leaders, US
aircraft attacked four villages around the hamlet of Kakrak. According
to reports, this episode followed the firing of guns at two wedding
parties, and resulted in killing over 50 people and injuring over
100. This led to another Pentagon investigation.[114]
In several cases, bombings led to casualties among coalition forces:
while this is not a laws-of-war issue as such, and is not uncommon
in armed conflicts, it further confirms the fact that precision
bombing can produce terrible disasters if the intended target
is incorrectly identified.[115]
It is difficult to arrive at a reliable estimate
of the overall number of civilian deaths caused directly by the
bombing in Afghanistan. As in the 1991 Gulf and 1999 Kosovo wars,
the Pentagon has been reluctant to issue figures. Whereas Iraq
in 1991 and Yugoslavia in 1999 had reasonably effective systems
of official record-keeping in place, Afghanistan in 2001 did not.
As a result of these factors, estimates of Afghan civilian deaths
have been unofficial.
Controversy was caused by an estimate of 3,767
as of mid-December 2001 made by Professor Marc Herold of the University
of New Hampshire.[116]
There were substantial grounds for doubt about his methodology:
and his figure, almost certainly a serious over-estimate, was
later modified.[117]
In response to Herold's December estimate, Rumsfeld stated in
an interview on 8 January 2002:
there probably has never in the history of the
world been a conflict that has been done as carefully, and with
such measure, and care, and with such minimal collateral damage
to buildings and infrastructure, and with such small numbers of
unintended civilian casualties.[118]
In 2002 a number of reports based on on-site
examinations gave a more authoritative, but incomplete, picture.
In July the New York Times published the results of a review
of eleven of the "principal places where Afghans and human
rights groups claim that civilians have been killed." It
found that at these sites "airstrikes killed as many as 400
civilians". A principal cause was poor intelligence.[119]
In September a San Francisco-based human rights group, Global
Exchange, estimated on the basis of a survey conducted in Afghanistan
that "at least 824 Afghan civilians were killed between October
7 and January 2002 by the US-led bombing campaign."[120]
A Human Rights Watch report on civilian casualties in Afghanistan
is due in late 2002.
While even an approximate figure for civilian
casualties of the bombing in Afghanistan may never be known, it
appears certain that the number of civilian deaths in the period
October-December 2001 was far more than the 500 in Yugoslavia
during the war over Kosovo in 1999, and probable that it was over
one thousand. The question then is how this was possible given
that twice the percentage of precision-guided munitions was used
and the overall number of weapons dropped was much less. Of the
many possible factors meriting investigation, two were the imperfections
of the intelligence/targeting process, and the uncertain identity
of the combatantsboth of which are generic problems in
counter-terrorist operations.
In legal terms, the incidence of civilian deaths
per se does not always constitute a violation, absent other factors
regarding the circumstances of such deaths. Wilful killings and
intentional attacks against the civilian population as such or
against individual civilians not taking part in hostilities are
clearly illegal. In addition, the 1977 Geneva Protocol I, Article
57, spells out a positive obligation on commanders to exercise
care to spare civilians and civilian objects.
There are strong reasons to believe US statements
that civilian deaths in Afghanistan due to the US bombing were
unintended. Some of the deaths appear to have resulted from errors
of various kinds, and some may have been unavoidable "collateral
damage". One cause of civilian casualties in October-December
2001 may have been the fact that, in a legacy from the period
of Soviet involvement in Afghanistan, many Taliban military assets
were located in towns, where they were less vulnerable to raids
from rural-based guerrillas, but where they were of course closer
to civilians who risked getting hit in bombing attacks. While
much of the bombing has been discriminate, questions have been
raised about whether all appropriate measures have been taken
to reduce civilian casualties and damage. Even if much of the
civilian death and destruction is not a violation of the law,
the resulting adverse public perception risks harming the coalition
cause.
The air campaign in Afghanistan confirmed the
lesson of earlier campaigns, especially the war over Kosovo in
1999, that there is tension between current US and NATO strategic
doctrine and certain international legal provisions on targeting.
The 1977 Geneva Protocol I, Article 52(2), opens with the words:
"Attacks shall be limited strictly to military objectives."
It goes on to indicate the types of objects that might constitute
military objectives. This provision presents some difficulties,
and has been the subject of interpretative declarations by a number
of states.[121]
The US, although not bound by the protocol, has indicated that
it accepts this article.[122]
However, even before the US involvement in Afghanistan a number
of US legal experts had expressed serious concerns about the provision.
For example, Major Jeanne Meyer, co-editor of the Operational
Law Handbook, stated that this article "tries to constrict
the use of air power to the specific tactical military effort
at hand" and "ignores the reality that a nation's war
effort is composed of more than just military components".
While not suggesting total rejection of the provision, she urged
the US to "resist the pressure to accept restrictive interpretations
of Article 52(2)."[123]
In general, the US is anxious to retain some legal justification
for attacks on certain targets that may not themselves be purely
military, but which may, for example, contribute to the military
effort or constitute key parts of a regime's infrastructure.
Did the concern over civilian casualties undermine
the US bombing effort in Afghanistan in its most intense phase
in October-December 2001? Its success against the Taliban would
suggest not, but there were indications that the concern had serious
effects. It was reported that the US had deliberately slowed the
pace of the campaign, and increased the risk to the people executing
it, because of legal restraints and moral values. It was also
stated that war planners frequently chose not to hit particular
targets, even if they were militarily important, and pilots allegedly
complained of lost opportunities. Yet the planners could not reveal
their reasoning for ruling out certain targets, as it would give
the adversary `a recipe book for not being bombed'. The issue
of civilian casualties also became ammunition for inter-service
battles, particularly for Army arguments in favour of "boots
on the ground".[124]
In addition to the direct casualties, there
were also, inevitably, indirect casualties of the bombing. These
appear to have come into two categories. First, the bombing caused
thousands of Afghan civilians to flee their homes.[125]
Some died in the harsh conditions of flight and displacement.
Second, the use of cluster bombs led to immediate and longer-term
civilian casualties. Cluster bombs are air-dropped canisters containing
numerous separate bomblets that disperse over a given area. The
bomblets, which are meant to explode on impact or to self-deactivate
after a specific period, can cause particularly severe problems
if they fail to do so. There have been objections to their use,
principally on the ground that they have a tendency, like anti-personnel
land-mines, to kill people long after the conflict is over. Reports
from Kosovo and elsewhere have confirmed the general seriousness
of the problem.[126]
The UN's Mine Action Programme for Afghanistan (MAPA) estimates
that 1,152 cluster bombs were dropped by the US, leaving up to
14,000 unexploded bomblets as a result.[127]
According to the US State Department in July 2002, "the clearance
of cluster munitions is being achieved at a rate faster than anticipated.
All known cluster munition strike sites have been surveyed where
access is possible and are in the process of being cleared."[128]
As the law stands, there has been no agreement to outlaw cluster
bombs, and while they are not illegal per se, their use
does raise questions regarding their compatibility with fundamental
principles of the laws of war. They are certain to be the subject
of further pressures to limit or stop their use, or to ensure
more effective safeguards against later accidental detonations.
A further issue concerns the use of bombing
in the hunt for Taliban and al-Qaeda personnel following the fall
of the Taliban regime in early December 2001. In the preceding
phase, bombing had been used primarily in support of Northern
Alliance frontal operations aimed at capturing the main Taliban-held
cities. Once this was achieved, a good deal of the bombing was
directed against remnant al-Qaeda mountain redoubts. It was also
directed against Taliban and al-Qaeda forces and their leaders,
but many incidents were reported in the press in which those killed
were apparently neither. The reports drew attention to the difficulty
of distinguishing between civilians and these forces. They also
raised the question, of broader significance in counter-terrorist
wars: to what extent can bombing remain an appropriate form of
enforcement once a state is, to a greater or lesser degree, under
the control of a new government that is opposed to the terrorists?
At that point, can the focus be transferred to other forms of
police and military action that may be less likely than bombing
to cause civilian casualties? Here, the legal argument for greater
reliance on the discriminate use of ground force merges into a
practical argument that only such means can prevent the escape
of the forces being targeted. US civilian and military officials
are reported to have concluded that Osama bin Laden had been present
at the battle for Tora Bora in December 2001, and that failure
to commit ground troops against him in this mountain battle was
the gravest error of the war.[129]
Whether or not this conclusion is correct, it does appear that
the reliance of the US on bombing and its reluctance to put its
own troops in harm's way may have enabled Taliban and al-Qaeda
leaders to escape.
Gas
One long-standing prohibition in warfare is
the rule against use of gas and bacteriological methods of warfare.
The US repeatedly expressed concern that al-Qaeda might be preparing
to use such methods in terrorist attacks. In addition, there were
a few situations in Afghanistan in which there could have been
pressures for the US to use gas. When, in 1975, the US had ratified
the 1925 Geneva Protocol, it had indicated that it considered
that certain uses of riot-control agents in armed conflict did
not violate the protocol.[130]
In early December 2001, Rumsfeld was asked at a press conference
if the US might use gas in the hunt for Taliban and al-Qaeda personnel
in mountain caves in Afghanistan. Rumsfeld's response contained
no denial:
Well, I noticed that in Mazar, the way they finally
got the dead-enders to come out was by flooding the tunnel. And
finally they came up and surrendered, the last hard core al-Qaeda
elements. And I guess one will do whatever it is necessary to
do. If people will not surrender, then they've made their choice.[131]
Humanitarian relief and refugee issues
Humanitarian relief and refugee issues impacted
upon all phases of operations in Afghanistan. The need for humanitarian
relief is particularly likely to arise in counter-terrorist operations
against a weak or failed state, because such states breed conditions
in which, simultaneously, terrorist movements can operate and
large-scale human misery and refugee flows can occur. The fact
of a war being against terrorists, while it may affect the mode
of delivery (since land convoys may be vulnerable to seizure)
does not affect the law applicable to the provision of relief.
The basic obligations of the various parties to an armed conflict
to assist in and protect humanitarian relief operations are embodied
in 1949 Geneva Convention IV, on civilians.[132]
The US government put heavy emphasis on air-dropping
of supplies. Announcing the start of Operation Enduring Freedom,
President Bush stated: "As we strike military targets, we
will also drop food, medicine and supplies to the starving and
suffering men and women and children of Afghanistan".[133]
US forces air-dropped considerable quantities of aid at the same
time as the major bombing operations took place. Unusually, US
forces air-dropped aid from the very beginning of the bombing
campaign, when there was still the possibility of an anti-aircraft
capability.[134]
In the first 25 days of the campaign more than one million "humanitarian
daily rations" were delivered.[135]
Some human rights and humanitarian agencies expressed specific
worries about the air-dropping of food. They were doubtful of
the value of air-dropping supplies compared to the previous deliveries
overland, and were concerned that the yellow wrapping of the food
packages could lead Afghans to mistake yellow cluster bomblets
for them. More generally, they were resistant to the use of military
assets for humanitarian purposes, be it the dropping of supplies
from the air, or shipping goods in military convoys to distribution
points. They tended to be critical of the bombing campaign generally,
and concerned also about the aggravated risks and obstacles to
their relief and development work that resulted from the military
operations, especially in view of the onset of winter. The unrealistic
call for a bombing pause issued by the UN High Commissioner for
Human Rights in October was indicative of the tension between
some agencies and the US government.[136]
In the event, the collapse of the Taliban regime in early December
2001 and its replacement by the interim administration facilitated,
but by no means guaranteed, the secure delivery of aid by land
routes. A wide range of countries and organizations took part
in the provision of aid.[137]
The refugee problem was of massive proportions
and could itself have constituted a possible ground for action
over Afghanistan. As of the beginning of September 2001 there
were about 3.5 million Afghan refugees in neighbouring countries,
mainly Pakistan and Iran. The intense hostilities and bombing
in October-December led to an additional 200,000 or more fleeing
from Afghanistan, as well as in an increase in the number of internally
displaced persons (IDPs) by perhaps half a million.[138]
Many of the internally displaced in, and refugees from, Afghanistan
testified eloquently to the disastrous effects of the bombing
on civilians and their property.[139]
The subsequent return of refugees to Afghanistan
was on a colossal scale. It started in January 2002, when 3,000
per day went back into Afghanistan.[140]
Not all who returned in 2002 chose to stay. By December some 300,000
were reported to have gone back to Pakistan, disappointed by insecurity
and economic hardship.[141]
However, a total of 1.8 million Afghans, 1.5 million of whom had
come from Pakistan, resettled in Afghanistan in 2002. UNHCR, which
played a major role, reported in September that this was "the
largest refugee repatriation in 30 years"ie since
the creation of Bangladesh.[142]
Some non-governmental charities and NGOs were critical of the
pressure to encourage refugees to return.[143]
The principal improvements that created the conditions for this
vast movement of people back to their country resulted from the
conclusion of major hostilities and the end of the Taliban regime
in December 2001, and also the ending of a years-long drought.
Observance of humanitarian norms during the war in Afghanistan
may have played some part, especially insofar as it helped to
limit the amount of destruction caused by the bombing.
4. PRISONERS
From late November 2001, the status and treatment
of prisoners taken in the "war on terror" (most but
not all of whom had been captured in Afghanistan) became the subject
of major international controversies. These centred of three inter-related
issues: first, the extraordinary events relating to prisoners
in Afghanistan in late 2001; second, the broader debate about
the legal status and treatment of prisoners taken in the "war
on terror" generally, including those held at Guantanamo;
and third, the question of possible judicial proceedings against
prisoners for pre-capture offences. This part looks at these three
issues in turn. (It does not look at the court cases in several
countries in which related questions have been raised.)
Prison disasters in Afghanistan
Initially, international attention focused on
one event: the killing of a large number of Taliban and al-Qaeda
prisoners who had been taken at Kunduz at around the time of its
fall on 23-24 November 2001, and who were then involved in the
revolt at Qala-e Jhangi Fort near Mazar-e Sharif in the period
25 November1 December. There had been very little sign
of serious preparation for handling prisoners. The precise chain
of events leading to the revolt has yet to be established, but
the causes appear to include the following heady mix: Some of
the prisoners were fanatical soldiers, for whom the whole concept
of surrender would be anathema; the arrangements for receiving,
holding and processing them were ad hoc and then casual;
there was a failure to communicate to them that they would be
treated in accord with international standards; a number of them
had not surrendered all their weapons; they were held in a place
where there was a large store of weapons, to which they gained
access; some of them, according to reports, feared that they were
about to be killed, so had nothing to lose by revolt; and some
feared interrogation by those whom they understood to be CIA operatives,
which changed the situation from an Afghan/Afghan equation.[144]
The revolt at Qala-e Jhangi Fort was a desperate
struggle in which not only many prisoners, but also a number of
Northern Alliance troops in charge of the fort, died. US bombing,
and sharp-shooting by UK special forces, played a part in the
defeat of the uprising. Public discussion in the UK and elsewhere
focused on the events at the fort, including the question of whether
the force used to quell the rebellion was excessive. If the situation
was as desperate and threatening as reports indicated, the use
of force was hardly surprising. Public discussion could more usefully
focus on how prisoners should be received and dealt with. The
real causes of the disaster were in the period before the prisoners
arrived at the fort. There were failures to think the issue through,
to make proper preparations, and especially to disarm all prisoners.
The mix of Afghan and outside involvement in the handling of the
prisoners may have further contributed to the outbreak of the
revolt.
In addition there has been evidence that Northern
Alliance forces mistreated and killed Taliban and al-Qaeda prisoners
who were in their custody, especially in the area of Sebarghan
in northern Afghanistan. If proven, this would be a clear violation
of the laws of war. From December 2001 onwards there were numerous
reports of prisoners having died in shipping containers, and of
being beaten or shot. Some reports, denied by the Pentagon, suggested
the presence of US forces in the area of some incidents. The ICRC
was reported as expressing concern that it had been able to register
only 4,000 of the 7,000 prisoners that the US said it and its
Afghan allies had in custody.[145]
Long after most of the prisoners had been incarcerated, conditions
remained shocking, in violation of international standards.[146]
International inquiries into these events are ongoing.
Whether the US and its coalition partners had
any influence over Northern Alliance actions in such basic matters
as protection of prisonersand, if so, whether they used
itis open to question. Some US statements indicated that
there could have been such influence. In his Pentagon press briefing
on 30 November, Rumsfeld indicatedin general terms, not
in connection with the prisoner questionthat the US does
have influence with the forces with which it operated in Afghanistan:
We have a relationship with all of those elements
on the ground. We have provided them food. We've provided them
ammunition. We've provided air support. We've provided winter
clothing. We've worked with them closely. We have troops embedded
in their forces and have been assisting with overhead targeting
and resupply of ammunition. It's a relationship.[147]
Legal status and treatment of prisoners generally
Within the Pentagon it was recognized as early
as September 2001 that in the forthcoming military action questions
relating to the legal status and treatment of prisoners could
be difficult. An unpublished document circulated by the USAF's
International and Operations Law Division contained the main outlines
of an approach that would continue to be influential: terrorists
were to be treated as "unlawful combatants"; it was
"very unlikely that a captured terrorist will be legally
entitled to PoW status under the Geneva Conventions"; however,
there was a "practical US interest in application of Law
of Armed Conflict principles in the context of reciprocity of
treatment of captured personnel." As regards treatment upon
capture,
if a terrorist is captured, Department of Defense
members must at the very least comply with the principles and
spirit of the Law of Armed Conflict ... A suspected terrorist
captured by US military personnel will be given the protections
of but not the status of a PoW.[148]
Consideration of the legal status and treatment
of prisoners taken by the US-led coalition must begin with the
distinction that has been drawn between the two main groups: Taliban
and al-Qaeda. As indicated below, one key factor in determining
the lawfulness of a combatant, and therefore the entitlement to
participate directly in hostilities, is the affiliation of the
combatant to a party to the conflict. The Taliban had a material
connection to a state (Afghanistan), whereas al-Qaeda did not.
A possible complicating factor is that in some cases non-Afghan
units appear to have fought alongside Taliban forces and may have
been under their control, which would strengthen a claim to PoW
status. In certain cases it may be difficult to determine whether
an individual should be considered Taliban or al-Qaeda, or belongs
in some other possible category. At Guantanamo there has evidently
been a tendency to classify only Afghan prisoners as Taliban.
All non-Afghans (some of whom were arrested outside Afghanistan)
appear to have been classified as al-Qaeda. However, it may be
doubted whether all foreigners drawn to support an Islamic cause
in Afghanistan, Pakistan or elsewhere, and who ended up in Guantanamo,
were necessarily members of al-Qaeda.
The basic rules for determining who is a lawful
combatant entitled to PoW status are in Article 4 of 1949 Geneva
Convention III (the PoW Convention). This states, in part:
A. Prisoners of war, in the sense of the present
Convention, are persons belonging to one of the following categories,
who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party
to the conflict as well as members of militias and volunteer corps
forming part of such armed forces.
(2) Members of other militias and members
of other volunteer corps, including those of organized resistance
movements, belonging to a Party to the conflict and operating
in or outside their own territory, even if this territory is occupied,
provided that such militias or volunteer corps, including such
organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible
for his subordinates;
(b) that of having a fixed distinctive sign
recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in
accordance with laws and customs of war.
(3) Members of regular armed forces who profess
allegiance to a government or an authority not recognized by the
Detaining Power.
(4) Persons who accompany the armed forces
without actually being members thereof ... provided that they
have received authorization from the armed forces which they accompany,
who shall provide them for that purpose with an identity card
...
The question as to whether, in order to qualify
for PoW status, members of a state's regular armed forces have
to meet the four conditions listed in Article 4(A)(2) specifically
in respect of members of other militias and resistance movements
is not pursued here. The general assumption has been that states'
regular forces should as a matter of course observe these conditions.[149]
Even if this general assumption could be challenged, it is widely
agreed that members of a state's forces must meet certain criteria.
For example, they should wear uniform when involved in military
actiona rule that the US views as applying even to commando
forces and airborne troops operating singly.[150]
There is also an obligation on parties to a conflict to supply
identity documents to all their personnel liable to become PoWs.[151]
However the criteria for PoW status are interpreted,
states have often deployed certain personnel such as spies in
a manner that does not meet the criteria, knowing that if they
fall into enemy hands they are unlikely to be viewed or treated
as PoWs; and they have also deployed certain personnel whose conformity
with the criteria is debatable. With respect to the operations
in Afghanistan in 2001, an argument could possibly be made that
some US or coalition personnel did not meet one or more of the
various conditions of lawful combatancy: for example, members
of US forces (including special forces or forward air controllers),
if not wearing a uniform or fixed sign and not carrying arms openly.
Such possibilities give the US a potential interest in avoiding
restrictive approaches to the granting of PoW status and treatment.
All lawful combatants, if captured, are entitled
to PoW status and all of the rights set forth in the Geneva Convention
III. They cannot be punished for the mere fact of having participated
directly in hostilities, but they can be tried for violations
of the detaining power's law, or of international law (including
the laws of war) that they may have committed.[152]
Questions regarding the status of a variety
of detainees who may fail to meet one of the above criteria are
not new. In previous wars, PoW status was seldom given to those
involved in resistance activities against occupation, or in cases
of alleged terrorism. On the other hand, some captured personnel
who arguably failed to meet one criterion or another applicable
at the time were viewed as entitled to PoW status.[153]
A procedure for determining who is a lawful
combatant, entitled to PoW status, is addressed directly in two
treaties.[154]
The first of these, 1949 Geneva Convention III, provides in Article
5 that, in cases of doubt, prisoners shall be treated as PoWs
"until such time as their status has been determined by a
competent tribunal". This Article does not specify who has
to have the doubt, nor the nature of the "competent tribunal".
However, the general principle is clear and is accepted in US
official manuals. For example, the US Army manual states unequivocally:
"When doubt exists as to whether captured enemy personnel
warrant continued PW [prisoner of war] status, Art. 5 Tribunals
must be convened".[155]
The second treaty to address the procedure for
determining who is a lawful combatant is 1977 Geneva Protocol
I. Article 45 contains elaborations of 1949 Convention III's provisions
on the status of detained persons. It suggests that a detainee
has "the right to assert his entitlement to prisoner-of-war
status before a judicial tribunal", but allows for considerable
leeway in the procedure by which a tribunal could reach a decision
about PoW status. The possibilities that the proceedings could
take place after a trial for an offence, and also in camera in
the interest of state security, are not excluded. This article
recognizes in plain language that not all those who take part
in hostilities are entitled to PoW status, but they are entitled
to certain fundamental guarantees discussed further below.
The uncertainties regarding the status and treatment
of people who are involved in hostile activities in various ways,
but who fail to meet the criteria for PoW status, are reflected
in muddled terminology. "Unlawful combatant", the most
common term, is generally used in this paper. The treaties that
implicitly create the category do not offer any satisfactory term
to describe such persons. The US Supreme Court, in its judgment
in the July 1942 case, Ex Parte Richard Quirin, used the
terms "unlawful combatant" and "unlawful belligerent",
apparently interchangeably, to refer to one who, "having
the status of an enemy belligerent enters or remains, with hostile
purpose, upon the territory of the United States in time or war
without uniform or other appropriate means of identification".[156]
One term advanced in the early 1950s by a respected authority
as the most appropriate to cover a wide range of combatants who
do not meet the PoW criteria is "unprivileged belligerent"a
term that carries the important implication that such persons,
while not meeting the criteria for PoW status, have not necessarily
committed a definite violation of the laws of war.[157]
In current US military manuals four terms"unprivileged
belligerent", "detainee", `unlawful combatant'
and `illegal combatant'are used, again apparently interchangeably,
to refer to those who are viewed as not being members of the armed
forces of a party to the conflict and not having the right to
engage in hostilities against an opposing party.[158]
The variety of the terminology is not in itself a major problem.
The key element of confusion in the debate was the tendency, especially
marked in the press in late 2001 and early 2002, to refer to such
terms as "unlawful combatant" and "battlefield
detainee" as if they were entirely new, were freshly invented
by the US government, and were completely outside the existing
treaty framework.
The ICRC and others have argued that detained
persons who do not qualify for PoW status (ie those often called
"unlawful combatants") should be viewed as civilians
and treated in accord with the 1949 Geneva Convention IV. This
view would appear to be in conformity with the first paragraph
of Article 4 of the Convention:
Persons protected by the Convention are those
who, at a given moment and in any manner whatsoever, find themselves,
in case of a conflict or occupation, in the hands of a Party to
the conflict or Occupying Power of which they are not nationals.[159]
Pictet's commentary on this Convention may appear
to confirm that those who are not classified as PoWs must be viewed
as civilians when it refers to:
a general principle which is embodied in all
four Geneva Conventions of 1949. Every person in enemy hands must
have some status under international law: he is either a prisoner
of war and, as such, covered by the Third Convention, a civilian
covered by the Fourth Convention, or again, a member of the medical
personnel of the armed forces who is covered by the First Convention.
There is no "intermediate status"; nobody in enemy hands
can be outside the law.'[160]
Further ammunition for this view can be found
in Article 50 of 1977 Geneva Protocol I. However, the view is
open to several objections that are rooted in the terms of relevant
treaties. (1) It is in tension with the specific terms of Article
4 of the 1949 Geneva Convention IV, which excludes from the Convention's
protection certain persons, namely nationals of neutral and co-belligerent
states; and it is likewise in tension with Pictet's statement
that the Convention is basically about "on the one hand,
persons of enemy nationality living in the territory of a belligerent
State, and on the other, the inhabitants of occupied territories."[161]
(2) The four 1949 Geneva Conventions, common Article 3, acknowledge
that in civil wars detainees may have a different status from
that of PoW or civilian. (3) The 1977 Geneva Protocol I, Articles
45 and 75, acknowledges that even in international armed conflicts
certain detainees may have a status that is distinct from those
of PoWs and civilians under the 1949 Geneva Conventions III and
IV. (4) It risks eroding the key distinction between combatants
and civilians that is fundamental to the laws of war, and is reflected
in the 1977 Geneva Protocol I, Article 48.
The fact that certain detainees taken in the
"war on terror" may be denied the status of either PoW
or civilian does not mean that they have no legal rights. The
provisions of common Article 3 of the 1949 Geneva Conventions,
although not specific to this category of person and formally
applicable only in non-international armed conflict, may be viewed
as minimum guarantees to be applied to all detainees.[162]
In addition, Article 45(3) of 1977 Geneva Protocol I addresses
the matter much more directly: "Any person who has taken
part in hostilities, who is not entitled to prisoner-of-war status
and who does not benefit from more favourable treatment in accord
with the Fourth Convention shall have the right at all times to
the protection of Article 75 of this Protocol." The said
Article 75 elaborates a range of fundamental guarantees that are
intended to provide minimum rules of protection for all those
who do not benefit from more favourable treatment under other
rules.
Although neither the US nor Afghanistan is a
party to 1977 Geneva Protocol I, the rules in Articles 45 and
75 are relatively uncontroversial and it is long-standing US policy
that they should be implemented.[163]
However, US officials have repeatedly omitted to mention these
articles in connection with the treatment of prisoners held in
the `war on terror'. The omission may reflect the general sensitivity
of the 1977 Geneva Protocol I in Washington, or specific doubts
about certain provisions of these articles. Nonetheless, the failure
to mention the articles appears odd: reference to Article 75 would
have been an obvious way of indicating that the treatment of the
detainees was within an international legal framework.[164]
After the status and treatment of prisoners
taken in Afghanistan became urgent in November 2001, public statements
of the US government were consistent and clear on one point. By
referring to these prisoners generally as "battlefield detainees"
and "unlawful combatants" the US signalled its unwillingness
to classify al-Qaeda and Taliban prisoners as PoWs. However, it
was slow to give detailed reasoning, and to indicate the principles
to be followed in the handling of the detainees. On 11 January
2002, when asked whether the ICRC would have any access to the
prisoners who had just been taken to the US naval base at Guantanamo
Bay in Cuba, Rumsfeld stated:
I think that we're in the process of sorting
through precisely the right way to handle them, and they will
be handled in the right way. They will be handled not as prisoners
of war, because they're not, but as unlawful combatants. The,
as I understand it, technically unlawful combatants do not have
any rights under the Geneva Convention. We have indicated that
we do plan to, for the most part, treat them in a manner that
is reasonably consistent with the Geneva Conventions, to the extent
they are appropriate, and that is exactly what we have been doing.[165]
In the following weeks there were numerous expressions
of concern in the USA and internationally about the status and
treatment of detainees, and about the risk that US conduct would
lead to a global weakening of the PoW regime.[166]
There were also intense disagreements within the US administration.[167]
The situation was made worse by the Pentagon's inept issuance
on 19 January 2002 of a photograph showing bound and shackled
prisoners, heads and eyes covered, kneeling before US soldiers
at Guantanamo. The photos, which showed a transitional stage during
the prisoners' arrival, became a misleading visual symbol of how
the Guantanamo camp was being operated.
Certain conciliatory gestures were made by the
US administration. ICRC officials started interviewing detainees
at Guantanamo on 18 January 2002, and were able to establish a
permanent presence there. Rumsfeld's above-quoted suggestion that
unlawful combatants have no rights under the Geneva Convention
was modified when, on 22 January, he recognized that "under
the Geneva Convention, an unlawful combatant is entitled to humane
treatment".[168]
On 7 February, the White House, in the first major policy statement
on the issue, announced:
The United States is treating and
will continue to treat all of the individuals detained at Guantanamo
humanely and, to the extent appropriate and consistent with military
necessity, in a manner consistent with the principles of the Third
Geneva Convention of 1949.
The President has determined that
the Geneva Convention applies to the Taliban detainees, but not
to the al-Qaida detainees.
Al-Qaida is not a state party to
the Geneva Convention; it is a foreign terrorist group. As such,
its members are not entitled to POW status.
Although we never recognized the
Taliban as the legitimate Afghan government, Afghanistan is a
party to the Convention, and the President has determined that
the Taliban are covered by the Convention. Under the terms of
the Geneva Convention, however, the Taliban detainees do not qualify
as POWs.
Therefore, neither the Taliban nor
al-Qaida detainees are entitled to POW status.
Even though the detainees are not
entitled to POW privileges, they will be provided with many POW
privileges as a matter of policy.[169]
The Fact Sheet, while containing numerous detailed
assurances about the treatment of the detainees at Guantanamo,
indicated that they would not receive certain specific privileges
afforded by the Geneva Convention III, including:
access to a canteen to purchase food,
soap and tobacco
a monthly advance of pay
the ability to have and consult personal
financial accounts
the ability to receive scientific
equipment, musical instruments, or sports outfits.[170]
This US refusal to grant these particular privileges
was justified in terms of the security risk posed by many detainees
at Guantanamo to their guards and to each other. A specific indication
of this kind can be compatible with an overall approach of respect
for a legal regime, and can also contribute to change in that
regime. The refusal of these privileges caused no outcry, and
parts of the 7 February statement reassured international opinion.
However, the earlier part of the statement was
incoherent in certain respects. The recognition that the Geneva
Convention III did apply to the Taliban, followed by the blanket
statement that "under the terms of the Geneva Convention"
the Taliban did not qualify as PoWs, had the confusing appearance
of simultaneous admission and retraction. In his accompanying
statement, the White House Press Secretary indicated the reason
why the Taliban detainees failed to qualify as PoWs:
To qualify as POWs under Article 4, al Qaeda
and Taliban detainees would have to have satisfied four conditions.
They would have to be part of a military hierarchy; they would
have to have worn uniforms or other distinctive signs visible
at a distance; they would have to have carried arms openly; and
they would have to have conducted their military operations in
accordance with the laws and customs of war.
The Taliban have not effectively distinguished
themselves from the civilian population of Afghanistan. Moreover,
they have not conducted their operations in accordance with the
laws and customs of war. Instead, they have knowingly adopted
and provided support to the unlawful terrorist objectives of the
al Qaeda.
Al Qaeda is an international terrorist group
and cannot be considered a state party to the Geneva Convention.
Its members, therefore, are not covered by the Geneva Convention,
and are not entitled to POW status under the treaty.[171]
The argument about the Taliban appears to assume
that the four conditions, which are listed in Article 4(A)(2)
specifically in respect of members of "other militias"
and resistance movements, must necessarily apply to the Taliban;
and it then proceeds to interpret the four conditions in such
a way that support for "unlawful terrorist objectives"
becomes one basis for denial of PoW status. As for the al-Qaeda
detainees, although certain of the stated reasons for not applying
the Convention to them are well founded, the particular argument
that because al-Qaeda is not a party to the Convention it cannot
benefit from it is not correct. There was a curiously legalistic
streak in an approach which put such emphasis on the purported
distinction between the Taliban and al-Qaeda detainees yet saw
no practical consequences: "No distinction will be made in
the good treatment given to the al-Qaida or the Taliban."[172]
A striking feature of the statement is its avoidance of any hint
of doubt about status: none of the detainees, even the Taliban
ones, could possibly qualify as PoWs. In keeping with this, nothing
was said about the tribunals provided for in Article 5 of 1949
Geneva Convention III and Article 45 of 1977 Geneva Protocol I.
A further notable omission was the absence of reference to Article
75 of the 1977 protocol. Despite certain merits, the US statement
was less technically proficient, and less reassuring, than it
could have been. Expressions of international concern regarding
the status and treatment of detainees in Guantanamo and elsewhere
continued.
In response to the White House statement of
7 February, the ICRC press office in Geneva stated the next day
that it "stands by its position that people in a situation
of international conflict are considered to be prisoners of war
unless a competent tribunal decides otherwise."[173]
The ICRC's emphasis on PoW status contrasted with its statements
in respect of prisoners in the wars in the former Yugoslavia in
1991-5: in these wars, which were partly internal but also had
an international dimension, the ICRC had generally avoided status
questions, and had variously used such terms as "captured
combatants", "prisoners" and "detainees".[174]
The ICRC statement in respect of prisoners taken in Afghanistan
was arguably in accord with Article 45 of 1977 Geneva Protocol
I, but it went well beyond Article 5 of 1949 Geneva Convention
III, which makes the more modest stipulation that in cases of
doubt prisoners shall be treated as PoWs. Presumably, there could
be cases in which there is no doubt in the first place. In some
statements ICRC press spokesmen went so far as to deny the existence
of a legal category of unprivileged or illegal combatant. Since
the category of unprivileged belligerent has a long history, is
implicit in the criteria for PoW status in 1949 Geneva Convention
III, and is explicit in Article 45 of 1977 Geneva Protocol I,
these statements were not well founded, and they were modified
in the course of 2002. The same basic stance, with the same weaknesses,
was taken by Amnesty International in London and Human Rights
Watch in New York.[175]
These positions may have reinforced the reservations of the US
administration about the advice they were receiving from outside
bodies.
The fundamental US position that many of the
detainees taken in Afghanistan should not be accorded the status
of PoWs appears to have been based on three main practical considerations:
the first related to conditions of detention of prisoners, the
second to their release, and the third to the conduct of judicial
proceedings.
On conditions of detention, a main concern was
that 1949 Geneva Convention III famously states that PoWs are
obliged to give only names, rank, date of birth and number.[176]
The US was anxious to obtain considerably more information from
the detainees. There is nothing in the Convention that precludes
questioning on other issues, and whether a different classification
actually improves the prospects of securing accurate information
is debatable. The US also wished to keep the detainees more segregated
from each other, and with less access to means of committing harm,
than full observance of all the PoW Convention's articles would
provide. As regards release of prisoners, the Geneva Convention
III codifies a practice that is normally pursued after a warreleasing
and repatriating PoWs. Any such release of all the detainees from
the "war on terror" would pose three problems. First,
there may not be a clear end of hostilities: while the war in
Afghanistan may be concluded at a definite date, it may be decades
before the US or other states can declare that the "war on
terror" is over. Second, unlike PoWs in a "normal"
inter-state war, some of the prisoners concerned might continue
to be extremely dangerous after release, given their training,
their motivation to commit acts of terrorism, and lack of governmental
control over them.[177]
Third, their countries of origin might refuse to accept them back,
except perhaps as prisoners.
Judicial proceedings
As regards judicial proceedings in respect of
pre-capture offences, from early on in the war the US reportedly
intended to prosecute a number of al-Qaeda and Taliban leaders,
including Osama bin Laden if captured. However, it is unclear
that the point of detaining the prisoners in Guantanamo is to
try them. Insofar as the possibility of trials is envisaged, the
US appears reluctant to pursue the procedure laid down in Geneva
Convention III, which specifies that any sentence of a PoW must
be "by the same courts according to the same procedure as
in the case of members of the armed forces of the Detaining Power".[178]
If, following this provision, cases were handled through the normal
US military courts, there could be problems, especially regarding
the normal US military procedures for appeals.[179]
Moreover, if a pre-capture offence was of a type that would result
in members of the armed forces of the detaining power appearing
before a civil court, then it is implicit in the above-quoted
terms of the Convention that a PoW could appear before a civil
court. Such standard procedures, US officials feared, could provide
opportunities for al-Qaeda suspects and their lawyers to prolong
legal processes and attract publicity. There was also concern
that in cases involving defendants with no documents and no willingness
to collaborate with any of the procedures, and where evidence
might be largely based on intelligence sources, it could be difficult
to provide evidence that met high standards of admissibility,
and equally high standards of proof of direct personal involvement
in terrorist activities. Further, al-Qaeda might learn valuable
information from evidence in open court, for example about its
vulnerability to intelligence gathering.
It was because of such fears about normal judicial
procedures that the administration made provision for trial by
military commissions. There are numerous precedents for such provision:
for example, President Roosevelt's Proclamation of 2 July 1942,
bluntly entitled "Denying Certain Enemies Access to the Courts
of the United States".[180]
In its decision of 31 July 1942 in the case of Ex Parte Richard
Quirin the US Supreme Court ruled in favour of the lawfulness
of the Proclamation.[181]
The current status of such legal precedent is beyond the scope
of this survey. President Bush's Military Order of 13 November
2001 provides for the option of trying certain accused terrorists
by military commissions operating under special rules. It applies
only to non-US citizens. It specifies that individual terrorists,
including members of al-Qaeda, can be detained and tried "for
violations of the laws of war and other applicable laws",
and that the military commissions would not be bound by "the
principles of law and the rules of evidence generally recognized
in the trial of criminal cases in the United States district courts".
It also contains some extremely brief provisions for humane conditions
of detention, and provides for the Secretary of Defense to issue
detailed regulations on such matters as the conduct of proceedings
of the military commissions.[182]
President Bush's Military Order was the subject
of considerable legal and political debate in the US and elsewhere
as to its constitutionality, practicability and advisability.
The controversy about the military commissions was part of a larger
debate about which particular approach to the prosecution and
trial of alleged terrorists should be pursued. Possibilities that
were raised in public discussion included US federal courts, foreign
national courts, a UN ad hoc international criminal tribunal,
a coalition-based criminal tribunal, and a special Islamic court.[183]
The controversy about the proposed military
commissions abated somewhat over time. On 30 November 2001, the
President's Counsel offered several assurances, including that
military commissions are one option, but not the only option.[184]
On 21 March 2002 the Pentagon issued the long-promised detailed
regulations on the conduct of proceedings of the projected military
commissions, the terms of which went some way to meet the expressions
of concern regarding President Bush's Military Order of the previous
November.[185]
As far as the laws of war are concerned, a key issue (not explicitly
addressed in the Pentagon document) is whether the provisions
regarding the trial procedure conform with the 10 recognized principles
of regular judicial procedure outlined in 1977 Geneva Protocol
I, Article 75, which relates to persons not entitled to PoW status.
The Pentagon's detailed regulations reflect almost all these principles
apart, arguably, from the final one, which is that "a convicted
person shall be advised on conviction of his judicial and other
remedies and of the time-limits within which they may be exercised."[186]
A problem regarding the prisoners held by the
US is the uncertainty regarding whether and when they will be
tried, and whether they will be held indefinitely or released.[187]
Nearly 600 suspects of many different nationalities are held at
Guantanamo, but at the time of writing there is no sign of the
military commissions becoming operational. The US has indicated
that the judicial process may have to wait until after "the
war on terror is won", at which distant point the detainees
may be tried or released. Their indefinite detention, without
any charge or trial, would violate fundamental standards of human
rights and be hard to justify. Yet when the main problem with
potential suicide bombers is not what they have done, but what
they might do in future, the resort to judicial procedures does
not address the essence of the problem.
5. FURTHER DEVELOPMENT
OF THE
LAW
The phenomena of global terrorism and the response
thereto, while by no means wholly new, pose many challenges to
existing legal provisions, from matters as large as the meaning
of "armed conflict" to those as detailed as the conditions
of detention. Thus it is not surprising that there were several
suggestions that the existing laws of war might need to be revised,
updated, supplemented or reinterpreted to take into account new
forms of conflict. The case for such reconsideration, which basically
arose in connection with the war in Afghanistan and the many related
issues, may have been reinforced by events elsewhere, especially
the numerous cases of Palestinian suicide bombings in 2001-2.
In February 2002, following the furore over the detainees at Guantanamo,
Pierre-Richard Prosper, the US Ambassador-at-Large for War Crimes
Issues, stated: "The war on terror is a new type of war not
envisioned when the Geneva Conventions were negotiated and signed."[188]
He also said at that time: "We should look at all international
documents to see whether they are compatible with this moment
in history."[189]
Such suggestions that the law might need to
be revised are vulnerable to four obvious lines of criticism.
(1) In several statements on the matter Ambassador Prosper gave
little indication of what particular revisions might be made to
the 1949 Geneva Conventions. (2) There was naturally a suspicion
in certain humanitarian organizations that suggestions that existing
law was out of date or irrelevant to the terrorist problem might
be a way of trying to evade obligations to implement existing
law fully. (3) Proponents of change failed to mention that the
negotiators at Geneva in 1949 had addressed a closely related
issue, namely the activities of resistance movements during the
Second World War, and that Articles 4 and 5 of the Geneva Convention
III are among the provisions that already reflect this. (4) There
was also a failure to mention in this context the revisions that
had already been made to the 1949 Geneva Conventions. Proponents
of change were notably reluctant to mention even the title of
1977 Geneva Protocol I although it constitutes the most important
actual updating of the 1949 conventions. It contains the clearest
prohibitions in the laws of war of certain actions in which many
terrorist movements engage, such as attacks on civilians. It also
introduces some constructive provisions that are germane to the
"war on terror". Such provisions that the US has in
principle accepted include those on targeting, and on the treatment
of detainees who do not qualify as PoWs.
Although such criticisms have considerable force,
the fact is that the law is bound to evolve in response to the
new problems of a new age. Much of that evolution may take the
form, not of new conventions, but rather of evolving state practice
some of which may have, or acquire, the status of customary law.
However, some of the legal evolution may involve international
conferences.
Of the many issues related to the "war
on terror" that could come up in any exploratory process
with a view to further change in the law, five of the candidates
for consideration could be: (a) the conditions of application
of the laws of war; (b) the classification and treatment of detainees;
(c) legitimate means of responding to suicide bombers who by definition
cannot be deterred by normal means, and whether reprisals can
ever be justified in this context; (d) the interpretation of the
rules on targeting in the light of the experience of recent wars
in Afghanistan and elsewhere; and (e) remnants of war, a problem
that includes but is by no means restricted to cluster bombs,
and is in any case the subject of separate negotiation in a UN
framework in Geneva.
Partly because of the salience of such issues,
there continued to be some demand for an exploration of how the
law relates to certain aspects of contemporary conflicts. In September
2002 the Swiss Foreign Ministry announced that it "wishes
to support an informal process and provide a space for debate
on the reaffirmation and development of international humanitarian
law in light of the new and evolving realities of contemporary
conflict situations." Representatives of certain governments
and international bodies, as well as independent experts, were
to be invited to contribute to an informal meeting to be held
in January 2003. Cautiously, the Swiss note announcing this stated
that one of the purposes of the exercise was "if necessary,
the consideration of the development of new rules": the potential
topics listed were at this stage general and imprecise.[190]
6. CONCLUSIONS
There are ample grounds for questioning whether
military operations involving action against terrorists constitute
either a new, or a wholly distinct, category of war. The coalition
operations in Afghanistan, and the larger war against terrorism
of which they are a part, are not completely unlike earlier wars.
Many forms of military action and issues raised are similar to
those in previous military operations, and concern issues already
addressed by the laws of war.
Events in Afghanistan have confirmed that there
are particular difficulties in applying the laws of war to counter-terrorist
operations. A war that has as a purpose the pursuit of people
deemed to be criminals involves many awkward issues for which
the existing laws of war are not a perfect fit. In addition, the
use of local forces as proxies (a common feature in counter-terrorist
wars) risks creating a situation in which major powers fail to
exercise responsible control over their local agents, whose commitment
to the laws of war may be slight. More fundamentally, any war
against a grand abstraction, as the "war on terror"
undoubtedly is, risks creating a mentality in which adversaries
are seen as dehumanized, and the cosmic importance of the struggle
may be thought to outweigh mundane legal or humanitarian considerations.
However, treating, or appearing to treat, the
law in a cavalier manner risks creating new problems. If a major
power is perceived as ignoring certain basic norms, this may have
a negative effect within a coalition, or on enemies. It may involve
severe risks to any of its own nationals who may be taken prisoner.
It may also affect the conduct of other states in other conflicts.
In that wider sense, the principle of reciprocity in the observance
of law retains its value.
In particular, the US handling of questions
relating to the treatment and status of prisoners has caused widespread
concern and criticism. As regards those under Northern Alliance
control, practical arrangements, around the time of the rebellion
at Mazar-e Sharif and also subsequently, were inadequate. More
generally, although many key US positions were defensible, especially
that certain prisoners did not qualify for PoW status, aspects
of US policy and procedures were poorly presented, and in some
cases did not appear to be fully thought-out. The prisoner issuealways
sensitive anywaywas especially significant in this war:
if the coalition were perceived to have treated prisoners inhumanely,
or to have regarded their status and treatment as being in an
international legal limbo, there would be risks of a general weakening
of the prisoner regime, including for any coalition personnel
taken prisoner in the ongoing war on terrorism. The handling of
this issue was a potential threat to coalition unity. The controversies
over the prisoner question had a special resonance because of
the concern of other countries that the US had been moving towards
unilateralism generally, on a wide range of matters: in this perspective,
fairly or unfairly, the US reluctance to accept the full application
of 1949 Geneva Convention III to those particular prisoners was
seen as one more example of a selective approach to international
law.
In the course of the first year of its "war
on terror", and especially in the early handling of prisoner
issues in Afghanistan and at Guantanamo, the Bush administration's
expression of policies on certain laws-of-war issues was at times
hesitant and unskilful. It would be easy to attribute this to
the administration's alleged general ideological hostility towards
international agreements. However, some other explanations may
carry more weight. The US had a record of concern stretching back
decades about the ways in which international humanitarian law
has been developing, especially as regards terrorism, and also
in regard to the rules on what is a legitimate target. The administration
was right that certain aspects of the law, including aspects of
the PoW regime, were not appropriate for the treatment of alleged
terrorists. Part of the explanation of the administration's failure
to handle the particular question of the status of detainees effectively
may lie quite simply in the fact that it was proceeding in a reactive
manner. In addition, there appears to have been insufficient consultation
with the military's own legal specialists.
Whatever the defects of the Bush administration's
response, the professionalism of the US armed forces, coupled
with the effect of criticism within and beyond the US, led to
policy and practice on the prisoner issues evolving in a generally
sensible direction. This evolution has been ad hoc and
incomplete. In general, there have been no major public doctrinal
statements from the US government on how the laws of war apply
to the "war on terror"perhaps because the application
of those laws can indeed be complicated and policy-makers do not
wish to foreclose options.
This war occasioned a greater degree of tension
between the US on the one hand, and international humanitarian
and human rights bodies on the other, than any of the wars of
the post-Cold War period. The handling of certain laws-of-war
issues by the ICRC and various other humanitarian organizations
left much to be desired. It was natural that they should be nervous
about the US administration's view of international humanitarian
law and that they should press for full implementation of that
law, especially in relation to prisoners. However, they were on
legally dubious ground when they pressed the US to view detainees
as being entitled to be PoWs, and in their insistence that if
they were not given PoW status then they must be classed as civilians.
They missed a major opportunity to point out publicly the relevance
of certain provisions of 1977 Protocol I to persons not entitled
to PoW status. It was odd, and out of character, for the ICRC
to deny the applicability of the law governing international armed
conflict to certain aspects of the Afghan conflict, including
the phase from June 2002 onwards. Overall, the stance of such
bodies, while leading to certain useful clarifications of US policy,
may also have had the regrettable effect of reinforcing US concerns
(well publicized in debates about the International Criminal Court)
about zealous international lawyers standing in unsympathetic
judgement on the actions of US forces.
Returning to the four questions set out at the
beginning of this survey, the foregoing account suggests these
responses:
First, according to a strict interpretation
of their terms, the main treaties relating to the conduct of international
armed conflict are formally and fully applicable to counter-terrorist
military operations only when those operations have an inter-state
character. Where counter-terrorist operations are simply part
of a civil war, the parties must apply, as a minimum, the rules
applicable to civil wars. Where operations are simply part of
a state's policing, and not part of an armed conflict such as
to bring the laws of war into play, the laws of war are not formally
in force.
Second, in counter-terrorist military
operations, certain phases and situations may well be different
from what was envisaged in the "scope of application"
and other provisions of the main treaties on the laws of war.
They may differ from the provisions for both international and
non-international armed conflict. Recognizing that there are difficulties
in applying international rules in the special circumstances of
counter-terrorist war, the attempt can and should nevertheless
be made to apply the law to the maximum extent possible. At the
very least, it has considerable value as a blueprint or template.
This conclusion that the principles embodied in the laws of war
should be applied in a wide variety of situations is reinforced
by decisions of commissions of inquiry, certain resolutions of
the UN Security Council, some doctrine and practice of states
(including the USA), and considerations of prudence. In the "war
on terror", while there have been shortcomings in the interpretation
and application of existing law by governments and by humanitarian
organizations, much of what has been done has been within the
framework of the law and has confirmed its relevance.
Third, although the great majority of
prisoners taken in war are viewed as qualifying for PoW status,
in a counter-terrorist war, as in other armed conflicts, there
are likely to be individuals and even whole classes of prisoner
who do not meet the treaty-defined criteria for such status. A
procedure outlined in the 1949 PoW Convention and in US military
manuals is that in case of doubt about their status such people
should be accorded the treatment, but not the status, of a PoW
until a tribunal convened by the captor determines the status
to which the individual is entitled. A strong argument can be
made that such a procedure should have been pursued in the case
of Taliban detainees. However, in a struggle involving an organization
that plainly does not meet the criteria (and especially where,
as with al-Qaeda, it is not in any sense a state) it may be reasonable
to proclaim that captured members are presumed not to have PoW
status. In cases where it is determined that certain detainees
are not PoWs, they may be considered to be "unlawful combatants".
It is doubtful whether such persons should be classified as "civilians".
However, there are certain fundamental rules applicable to their
treatment, including those outlined in Article 75 of 1977 Geneva
Protocol I; and there is a tradition of applying basic norms of
the PoW regime. Any prisoner, whether classified as a PoW or not,
can be tried for offences, including those against international
law.
Fourth, there is a case for consideration
of further revision of the existing law. Suggestions that the
existing laws of war are generally out of date in the face of
the terrorist challenge are wide of the mark. However imperfect,
the law has played, and will continue to play, an important part
in influencing the conduct of the "war on terror". There
has neither been a serious suggestion that the existing legal
framework should be abandoned, nor substantial proposals for an
alternative set of rules. However, some modest evolutionary changes
in the law can be envisaged, for example regarding conditions
of application, the classification and treatment of detainees,
the whole difficult problem of how to respond to suicide bombers,
the problems of targeting, and possible new rules regarding remnants
of war. The application of the law to non-international armed
conflicts is another area in which there has been much development
since 1990 and more may be anticipated. Some changes in some of
these areas may require a formal negotiating process. Some, however,
may be achievedindeed, may have been achievedby
the practice of states and international bodies, including through
explicit and internationally accepted derogations from particular
rules that are manifestly inappropriate to the circumstances at
hand; and also through the application of rules in situations
significantly different from inter-state war.
68 Copyright (c) Adam Roberts, 2002, 2003. This will
appear as a chapter in a volume in the US Naval War College `blue
book' series of International Law Studies, Newport, RI, 2003.
It is a revised and updated version of `Counter-terrorism, Armed
Force and the Laws of War', Survival (quarterly journal
of International Institute for Strategic Studies, London), vol.
44, no. 1, Spring 2002, pp. 7-32. It incorporates information
available up to 15 December 2002. I am grateful for help received
from a large number of people who read drafts, including particularly
Dr Dana Allin, Dr Kenneth Anderson, Dr Mary-Jane Fox, Col. Charles
Garraway, Dr Hans-Peter Gasser, Richard Guelff, Commander Steven
Haines, and Professor Mike Schmitt. Also to participants at the
Carr Centre conference on `Humanitarian Issues in Military Targeting',
Washington DC, 7-8 March 2002; the US Naval War College conference
on `International Law & the War on Terrorism', Newport RI,
26-28 June 2002; and the International Society for Military Law
and the Law of War conference on `Terrorism and the Military:
International Legal Implications', The Hague, 14-15 November 2002.
Versions of this paper have also appeared on the website of the
Social Science Research Council, New York. Back
69
For texts of treaties and other international documents on terrorism,
and useful discussion thereof, see esp. Rosalyn Higgins
and Maurice Flory (eds.), Terrorism and International Law
(London: Routledge, 1997). For more recent treaties and UN resolutions
see the information on terrorism on the UN website. Back
70
`Crimes against humanity', defined in the Charter and Judgment
of the International Military Tribunal at Nuremburg in 1945-6,
are more fully defined in Article 7 of the 1998 Rome Statute of
the International Criminal Court, which entered into force on
1 July 2002. This Statute does not apply retroactively. On 6 May
2002 the US informed the Depositary that it did not intend to
become a party to the treaty and accordingly has no legal obligations
arising from its signature. Back
71
Full titles, texts and sources of treaties on the laws of war
mentioned in this survey may be found in Adam Roberts and Richard
Guelff (eds.), Documents on the Laws of War, 3rd edn. (Oxford:
Oxford University Press, 2000); and in Dietrich Schindler and
Jiri Toman (eds.), The Laws of Armed Conflicts: A Collection
of Conventions, Resolutions and Other Documents, 3rd edn.
(Dordrecht: Martinus Nijhoff, 1988). Treaty texts are also available
at the International Committee of the Red Cross website, http://www.icrc.org/eng. Back
72
For an authoritative account of the origins and meanings of common
Article 1 see Frits Kalshoven, `The Undertaking to Respect
and Ensure Respect in All Circumstances: From Tiny Seed to Ripening
Fruit', Yearbook of International Humanitarian Law, vol.
2, 1999 (The Hague: T.M.C. Asser Press, [2000]), pp. 3-61. Back
73
Chairman of the Joint Chiefs of Staff Instruction, Standing
Rules of Engagement for US Forces, Ref. CJCSI 3121.01A, 15
January 2000, p. A-9. A similar but not identical statement had
appeared in the Standing ROE of 1 October 1994, which this document
replaces. A number of other US military-doctrinal statements are
equally definite that US forces will always apply the law of armed
conflict. Back
74
1949 Geneva Convention III Relative to the Treatment of Prisoners
of War, Articles 4(B)(2) and 122. See also the references
to `neutral and other States not Parties to the conflict' in 1977
Geneva Protocol I Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International
Armed Conflicts, Articles 9, 19, 31 etc. Back
75
Rumsfeld, at the end of his opening statement at a news briefing
at the Pentagon on 4 December 2001, US DoD website, http://www.defenselink.mil/news/Dec2001.
He said this in a context of stressing that the US had taken `extraordinary
measures to avoid civilian casualties in this campaign'. Back
76
In an assessment of the events of 2001, Christopher Greenwood
has argued that `proportionality in self-defence looks forward.
The test is whether the force used is proportionate to the threat
it is designed to meet, not to the events of the past.' Greenwood,
`International Law and the "War Against Terrorism"',
International Affairs, vol. 78, no. 2, April 2002, pp.
313-4. Back
77
US Army, The Law of Land Warfare, FM 27-10, Department
of the Army Field Manual, Washington DC, July 1956, revised 15
July 1976, paragraph 41. Back
78
US Army, Law of Land Warfare, FM 27-10, paragraph 3. A
subsequent official US exposition of the principle states: `Only
that degree and kind of force, not otherwise prohibited by the
law of armed conflict, required for the partial or complete submission
of the enemy with a minimum expenditure of time, life and physical
resources may be applied.' US Navy, The Commander's Handbook
of the Law of Naval Operations, NWP 1-14M, Department of the
Navy, 1995, paragraph 5.2. Back
79
US and NATO strategic doctrine is briefly discussed below in
Part 3, War in Afghanistan, section on bombing. Back
80
By contrast, `antiterrorism' has been defined as `defensive measures
to reduce the vulnerability of individuals and property to terrorist
attacks.' Both definitions are from US Army, Operational Law
Handbook (2002), International & Operational Law Department,
The Judge Advocate General's School, US Army, Charlottesville,
Virginia, issued 15 June 2001, ch. 18, p. 3. This annual publication
is available at https://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.nsf
Back
81
In ratifying 1977 Geneva Protocol I in 1998, the United Kingdom
made a statement that the term `armed conflict' denotes `a situation
which is not constituted by the commission of ordinary crimes
including acts of terrorism whether concerted or in isolation'. Back
82
1977 Geneva Protocol II Additional to the Geneva Conventions
of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts, Article 1. Back
83
For fuller discussion, and evidence that the concern about the
hazards of coping with terrorism in a laws-of-war framework is
not new, see my chapter in Lawrence Freedman et al.
(eds.), Terrorism and International Order, Chatham House
Special Paper (London: Routledge & Kegan Paul, 1986), esp.
pp. 14-15. Back
84
President Reagan's letter of transmittal of the 1977 Geneva Additional
Protocol II to the US Senate. Treaty Doc. No. 2, 100th Congress,
1st Session, at III (1987), reprinted in American Journal of
International Law, vol. 81, no. 4, October 1987, pp. 910-12. Back
85
Robert Thompson, Defeating Communist Insurgency: Experiences
from Malaya and Vietnam (London: Chatto & Windus, 1966),
p. 52. From 1957 to 1961 the author was successively Deputy Secretary
and Secretary for Defence in Malaya. As his and other accounts
make clear, in the course of the Malayan Emergency there were
certain derogations from human rights standards, including detentions
and compulsory relocations of villages. Back
86
Report of the Committee of Privy Counsellors Appointed to
Consider Authorized Procedures for the Interrogation of Persons
Suspected of Terrorism, Cmnd. 4901, Her Majesty's Stationery
Office, London, 1972, pp. 1-2 and 11-23. Back
87
Two key directives issued by US Military Assistance Command,
Vietnam, on the question of eligibility for PoW status are (1)
Annex A, `Criteria for Classification and Disposition of Detainees',
part of Directive no. 381-46 of 27 December 1967; and (2) Directive
no. 20-5 of 15 March 1968, `Inspections and Investigations: Prisoners
of War-Determination of Eligibility'. Both were reprinted in American
Journal of International Law, vol. 62, no. 4, October 1968,
pp. 766-75. The quotation is on p. 767. Back
88
Professor Yehuda Blum, Permanent Representative of Israel, at
UN Security Council, 5 June 1982. Security Council Official
Records, 2374th meeting, p. 7. The Security Council unanimously
demanded an end to all military activities and a withdrawal of
Israeli forces from Lebanon in Resolutions 508 and 509 of 5 and
6 June 1982 respectively. Back
89
Commission of Inquiry into the Events at the Refugee Camps
in Beirut: Final Report, Jerusalem, 1983, pp. 53-4. The report
is reprinted in International Legal Materials, vol. 22,
no. 3, May 1983, at p. 473. The Commission was chaired by Yitzhak
Kahan, President of the Supreme Court of Israel. Back
90
In a case concerning detainees in Ansar Prison, on which the
Israeli Supreme Court issued a judgment on 11 May 1983, the Israeli
authorities asserted that the prisoners were `hostile foreigners
detained because they belong to the forces of terrorist organizations,
or because of their connections or closeness to terrorist organizations'.
Israel, while refusing them PoW status, claimed to observe `humanitarian
guidelines' of the 1949 Geneva Convention IV on civilians. For
details of the case see Israel Yearbook on Human Rights 1983,
vol. 13, pp. 360-64. Back
91
The name Operation Enduring Freedom was announced by Donald
Rumsfeld at a press conference on 25 September 2001. See
http://www.defenselink.mil/news/Sep2001/briefings.html. Operation
Enduring Freedom, he said, was not the `umbrella phrase' for
the entire anti-terror campaign, but referred to a `broad, sustained
multifaceted effort'. It has been used to refer to the coalition
military operations in and around Afghanistan that began on 7
October 2001. (It does not encompass the operations of the International
Security Assistance Force in Afghanistan, mentioned below.) Back
92
`Northern Alliance' is a colloquial term for the `United Islamic
Front for the Salvation of Afghanistan', which had been formed
on 13 June 1997. Back
93
Eight reporters died in the period October-December 2001, several
of them due to banditry rather than military operations. Information
supplied by Nik Gowing of BBC World Television, 26 January 2002. Back
94
UN Security Council Resolution 1193 of 28 August 1998, passed
unanimously. Identical wording had been used in SC Res. 764 of
13 July 1992 on the war in Bosnia and Herzegovina. This wording
did not necessarily mean that the Security Council viewed these
wars as international armed conflicts, but it did mean that international
standards had to be observed in them. Nor did it indicate that
the Council considered any prisoners taken in these wars to have
the full status of Prisoners of War; but it implied that they
should receive humane treatment in accord with international standards. Back
95
See esp. Hans-Peter Gasser, `Internationalized Non-International
Armed Conflicts: Case Studies of Afghanistan, Kampuchea and Lebanon',
American University Law Review, vol. 33, no. 1, Fall 1983,
pp. 145-61. Back
96
UN Security Council Resolutions 1368 of 12 September 2001 and
1373 of 28 September 2001. Back
97
ISAF was established in Afghanistan in January 2002 on the basis
of UN Security Council Resolution 1386 of 20 December 2001, passed
unanimously. Details of the Military Technical Agreement between
ISAF and the Interim Administration, plus annexes, are available
on UK Ministry of Defence website at http://www.operations.mod.uk/isafmta.doc. Back
98
On 11 September 2002 Afghanistan acceded to the Ottawa Convention
on Anti-personnel Mines. Information from UN website, http://www.un.org,
accessed 18 September 2002. Back
99
Afghanistan is nonetheless bound by the complete prohibition
on possession and use of biological weapons in the 1972 Biological
Weapons Convention, which it ratified on 26 March 1975. It is
not a party to the 1993 Chemical Weapons Convention, which it
signed on 14 January 1993 but has not ratified. Back
100
The original ICRC memorandum to the US and UK governments was
issued on 28 September 2001, and the replacement document on 5
October. Back
101
ICRC, memorandum to Afghan government, September 2001. Back
102
`Afghanistan: ICRC calls on all parties to conflict to respect
international humanitarian law', Communication to the press 01/47,
ICRC, Geneva, 24 October 2001, available at http://www.icrc.org. Back
103
ICRC, `Aide-Memoire' to US, 19 November 2002. (Similar messages
were addressed to Afghanistan and other concerned countries.)
This communication made no reference to UN Security Council resolutions
that might suggest the possibility of a different conclusion about
the status of the conflict and the applicability of the 1949 Geneva
Conventions. With questionable legal logic, it asserted that the
Third and Fourth Geneva Conventions no longer provided a legal
basis to continue holding without criminal charge persons who
had been captured in Afghanistan between 7 October 2001 and 19
June 2002, and that if these persons are to be kept in captivity,
criminal charges must be brought against them. On previous ICRC
caution regarding the categorization of conflicts, see Gasser,
`Internationalized Non-International Armed Conflicts' (above,
n. 28), at pp. 157-9. Back
104
UN Security Council Resolution 1267 of 15 October 1999. See
also Security Council Resolutions 1076 of 22 October 1996
and 1193 of 28 August 1998, both of which, in addressing the ongoing
conflict in Afghanistan, referred to the problem of terrorism
there, and called upon states to take specific actions, most notably
to end the supply of arms and ammunition to all parties to the
conflict. Back
105
President George W. Bush, Address to a Joint Session of Congress
and the American People, Washington DC, 20 September 2001. The
peroration added that God is not neutral. Text at US Embassy website,
http://www.usembassy.org.uk/bush83.html. Back
106
The principle of discrimination, which is about the selection
of weaponry, methods and targets, includes the idea that non-combatants
and those hors de combat should not be deliberately targeted. Back
107
President Bush, televised address announcing the start of military
strikes in Afghanistan, 7 October 2001. Text published in International
Herald Tribune, 8 October 2001, p. 3. Text also available
at http://www.usembassy.org.uk/bush91.html. Back
108
Richard Myers, interview with This Week on ABC TV, 21
October 2001, http://www.defenselink.mil/news/Oct2001/briefings.html. Back
109
Rumsfeld, Remarks outside ABC TV Studio, 28 October 2001, http://www.defenselink.mil/news/Oct2001/briefings.html. Back
110
These preliminary figures come from interviews in the US in March
2002, and from Eric Schmitt, `Improved U.S. Accuracy Claimed in
Afghan Air War', New York Times, New York, 9 April 2002,
p. A-16 (reporting on a detailed Pentagon assessment). Back
111
Correspondence between ICRC and US Department of Defense, also
UK Secretary of State for Defence, November 2001. Back
112
On 19 March 2002 a CNN report datelined Washington stated that
a preliminary Pentagon investigation into the bombings of the
ICRC warehouse indicated that numerous clerical errors had led
to the mistaken bombings, that the US commander in charge of the
air campaign, Lt. Gen. Charles Wald, had `exceeded his authority
in ordering the strike' of 26 October, and that a key issue was
that, while the target had been placed on a `No Strike List' at
the Pentagon, it was inadvertently left off a separate `No Strike
List' maintained by the US Central Command in Tampa, Florida. Back
113
See eg the early reports by Richard Lloyd Parry and Justin
Huggler in The Independent, London, 2 December 2001, also
available at http://www.independent.co.uk. Back
114
Dexter Filkins, `Flaws in U.S. Air War Left Hundreds of Civilians
Dead', New York Times, 21 July 2001, http://www.nytimes.com. Back
115
On 13 September 2002 two US pilots who mistakenly bombed and
killed Canadian troops in Afghanistan on 18 April 2002 were charged-the
first criminal charges against US pilots in connection with the
events in Afghanistan. News report in The Times, London,
14 September 2002, p. 16. Back
116
Marc W. Herold, `A Dossier on Civilian Victims of US Aerial Bombing
of Afghanistan: A Comprehensive Accounting', 19 December 2001,
University of New Hampshire website http://pubpages.unh.edu/_mwherold/.
There are updates on this site. Back
117
Criticisms of Herold's methodology included the following. (1)
The calculations leading to the total figures were not transparent.
The author has informed me that the December figure was not intended
to suggest total accuracy. (2) Unavoidably, in view of time constraints,
the study relied heavily on media reports, some of them extremely
dubious. (3) Some incidents were counted twice in the December
total, eg due to different place names being used in reports.
(4) In some instances al-Qaeda deaths, and possibly Taliban deaths,
may have been reported as civilian deaths. On the other hand it
is probable that some civilian casualties of bombing went unreported
and were thus omitted from the report. For a strong critique,
see the paper by Jeffrey C. Isaac of Indiana University, `Civilian
Casualties in Afghanistan: The Limits of Herold's "Comprehensive
Accounting"', 10 January 2002, available at http://www.indiana.edu/_iupolsci/docs/doc.htm.
In August 2002 Herold stated that `the figure for the October
to December period should have been between 2,650 and 2,970 civilian
deaths', and that `between 3,125 and 3,620 Afghan civilians were
killed between 7 October and 31 July.' Herold, `Counting the Dead',
The Guardian, London, 8 August 2002, p. 17. Back
118
Rumsfeld, Interview on C-SPAN, 8 January 2002, http://www.defenselink.mil/news/Jan2002/briefings.html. Back
119
Dexter Filkins, `Flaws in U.S. Air War Left Hundreds of Civilians
Dead', New York Times, 21 July 2002. This included reference
to the Global Exchange survey mentioned below. Back
120
Afghan Portraits of Grief: The Civilian/Innocent Victims of
US Bombing in Afghanistan (San Francisco: Global Exchange,
September 2002), p. 3. This short (16-page) report was based on
a survey conducted by a 5-person team between March and June 2002.
It emphasizes that `it was impossible for our survey to be exhaustive
and comprehensive', and that the figure of 824 `represents only
a portion of civilian casualties' (pp. 3 and 6). It called on
the US Government to establish an Afghan Victims Fund. Report
available at http://www.globalexchange.org. Back
121
1977 Geneva Protocol I, Article 52(2). Declarations made by states
that have a bearing on their understanding of this article include
those by Australia, Belgium, Canada, Germany, Ireland, Italy,
Netherlands, Spain and UK. Texts in Documents on the Laws of War,
3rd edn. (above, n. 4), pp. 500-11. Back
122
US Army, Operational Law Handbook (2002) (above, n. 13),
ch. 2, p. 11. Back
123
Major Jeanne M. Meyer, `Tearing Down the Fac"ade: A Critical
Look at the Current Law on Targeting the Will of the Enemy and
Air Force Doctrine', Air Force Law Review, Alabama, vol.
51, 2001, pp. 166 and 181. Back
124
William M. Arkin, `Fear of Civilian Deaths May Have Undermined
Effort', Los Angeles Times, 16 January 2002, p. A12. http://www.latimes.com/news/nationworld/world/la-011602milmemo.story. Back
125
On those who fled from the intense fighting and bombing in Afghanistan
in October-November 2001, see the discussion of humanitarian relief
and refugee issues, below. Back
126
In the year after the NATO bombing campaign over Kosovo ended
in June 1999, at least 50 people in Kosovo were killed and over
100 injured by unexploded bomblets. Information can be found on
the UN Mine Action website, http://www.mineaction.org. Back
127
Richard Norton-Taylor, `Afghanistan Littered with 14,000 Unexploded
Bomblets, Says UN', The Guardian, London, 23 March 2002,
p. 18. Back
128
US Department of State, `Fact Sheet: U.S. Humanitarian Demining
Assistance to Afghanistan', Washington DC, 30 July 2002, available
at http://www.state.gov. Back
129
Barton Gellman and Thomas E. Ricks, `U.S. Concludes Bin Laden
Escaped at Tora Bora Fight', Washington Post, 17 April
2002, p. A1. Back
130
The various US statements reserving the right to use herbicides
and riot control agents in certain circumstances are summarized
in US Army, Operational Law Handbook (2002) (above, n.
13), ch. 2, pp. 9-10. Back
131
Donald Rumsfeld interviewed by Tim Russert on Meet the Press,
NBC TV, 2 December 2001, http://www.defenselink.mil/news/Dec2001/briefings.html. Back
132
1949 Geneva Convention IV Relative to the Protection of Civilian
Persons in Time of War, Part II (ie Articles 13-26). See also
1977 Geneva Protocol I, Articles 69-71; and Protocol II, Article
18. The issue of humanitarian relief is only touched on briefly
in this survey as, while of critical importance in Afghanistan,
only to a limited extent does it raise problems specific to counter-terrorist
military operations. Back
133
President Bush, televised address, 7 October 2001. (Above, n.
40.) Back
134
Information from senior Pentagon source, Washington DC, 7 March
2002. Back
135
Figures for humanitarian daily rations dropped in Afghanistan
were given in many Pentagon news briefings, including those of
8 and 31 October 2001. See http://www.defenselink.mil/news/Oct2001/briefings.html Back
136
Mary Robinson, UN High Commissioner for Refugees, on Irish Radio
on 12 October 2001, and on BBC-1 TV `Breakfast with Frost' programme,
14 October. Back
137
On the delivery of humanitarian aid after the collapse of the
Taliban regime, see eg the briefing by General Tommy Franks at
Tampa, Florida, on 18 January 2002, http://www.defenselink.mil/news/Jan2002/briefings.html. Back
138
Figures for up to 1 January 2002 from UNHCR, Refugees by Numbers,
2002 edn., available at UNHCR website, http://www.unhcr.ch. Back
139
See eg Taghi Amirani's documentary film, The Dispossessed, made
in November-December 2001, about the Makaki Camp in Nimruz Province
near the Afghan-Iranian border. The camp was initially under Taliban,
and then Northern Alliance, control. Back
140
Reports from UNHCR border monitors, summarized in a press briefing
by a UNHCR spokesman in Geneva, 25 January 2002; and Afghanistan
OCHA Situation Report No. 37, 29 January 2002, both on the UN
Reliefweb site, http://www.reliefweb.int/w/rwb.nsf. At that time
there were also movements of ethnic Pashtun from Afghanistan to
Pakistan. Back
141
DPA report of 12 December 2002 Back
142
UNHCR report of 3 September 2002 and press briefing of 12 December
2002, available at the UNHCR website. Back
143
See eg Jonathan Steele, `Going Home to Hunger and Death: Aid
Agencies Fear for Families Persuaded to Leave Refugee Camps',
The Guardian, London, 4 April 2002, p. 17. Back
144
Much valuable evidence about the outbreak and course of the prison
revolt at Qala-e Jhangi Fort has emerged, including particularly
video records. See eg Carlotta Gall, `Video Vividly Captures Prelude
to Fortress Revolt', New York Times, 16 July 2002, p. A15. Back
145
On the containers, see Carlotta Gall, report from Sebarghan,
`Long Journey to Prison Ends in Taliban Deaths: Many Suffocated
in Sealed Ship Containers', International Herald Tribune,
11 December 2001, p. 4; Babak Dehghanpisheh, John Barry and Roy
Gutman, `The Death Convoy of Afghanistan', Newsweek, New York,
26 August 2002, pp. 16-25; and the television documentary Afghan
Massacre shown in the UK on Channel Five, 11 November 2002. On
the prisoners generally see Rory Carroll, report from Kabul, `Afghan
jailers beat confessions from men', The Guardian, London,
28 December 2001, p. 13. Back
146
Dexter Filkins, `3,000 Forgotten Taliban, Dirty and Dying', International
Herald Tribune, London, 15 March 2002, p. 1. Back
147
Rumsfeld, Press Briefing with General Pace, 30 November 2001,
http://www.defenselink.mil/news/Nov2001/briefings.html. Compare
an earlier statement of British Prime Minister Tony Blair, who
when asked on 13 November, also in general terms, `What sanctions
do we have over the Northern Alliance?', replied `None'. UK 10
Downing Street website, http://www.pm.gov.uk. Back
148
International and Operations Law Division-HQ USAF/JAI, `Summary
of Legal Issues Relevant to Terrorism Incidents of 11 Sep 01',
Pentagon, Washington DC, 21 September 2001 [unpublished], pp.
5-6. Back
149
Jean S. Pictet (ed.), Commentary on Geneva Convention III (Geneva:
ICRC, 1960), p. 48; Howard S. Levie, Prisoners of War in International
Armed Conflict, US Naval War College International Law Studies,
vol. 59 (Newport, RI: Naval War College Press, 1978), pp. 36-8. Back
150
US Army, Law of Land Warfare, FM 27-10 (above, n. 10), paragraph
63. Back
151
1949 Geneva Convention III, Article 17. See also Article 4(A)(4),
quoted above, which indicates that civilian contracted personnel
(who played a significant part in the US operations in Afghanistan
in 2001-2) would appear to qualify for PoW status provided that
they have formal authorization. There is not a requirement that
they wear uniform. Back
152
1949 Geneva Convention III, Articles 99-104. The separate subject
of sanctions in respect of offences against prison camp discipline
is covered in Articles 89-98. As regards judicial proceedings
against detainees who do not have PoW status, see below. Back
153
Professor Levie, who has written extensively on the law relating
to PoWs, suggests that being of a different nationality from that
of the army in which they serve would not prevent combatants from
having PoW status, but he is more doubtful about spies and saboteurs
when not operating openly and in uniform. Levie, Prisoners of
War in International Armed Conflict (above, n.82), pp. 74-84. Back
154
For a useful discussion see Yasmin Naqvi, `Doubtful Prisoner-of-war
Status', International Review of the Red Cross, vol. 84, no. 847,
September 2002, pp. 571-94. Back
155
US Army, Operational Law Handbook (2002) (above, n. 13), ch.
2, p. 16. See also US Navy, Commander's Handbook of the Law of
Naval Operations, NWP 1-14M (above, n. 11), paragraphs 11.7 and
12.7.1. Back
156
US Supreme Court Reports, book 87, case 317, pp. 4, 5, 14, 16
etc. Back
157
The classic article on the subject is Richard R. Baxter, `So-called
"Unprivileged Belligerency": Spies, Guerrillas and Saboteurs',
British Year Book of International Law 1951, vol. 28, Oxford University
Press, London, 1952, pp. 323-45. His key conclusion is that this
large category of hostile conduct is not per se violative of any
positive prohibition of international law, but it does expose
those engaging in it to trial and punishment by the enemy, for
example under the enemy's own laws and regulations. In the years
since he wrote this, many terrorist acts have been prohibited
in international law, so the category is not necessarily appropriate
for those suspected of involvement in terrorism. Back
158
US Army, Operational Law Handbook (2002) (above, n. 13), ch.
2, pp. 6, 16 and 26; and US Navy, Commander's Handbook of the
Law of Naval Operations, NWP 1-14M (above, n. 11), paragraph 12.7.1. Back
159
1949 Geneva Convention IV, Article 4, first paragraph. For a
strong assertion that enemy combatants, if denied PoW status,
must be considered as civilians, see Hans-Peter Gasser, `Acts
of Terror, "Terrorism" and International Humanitarian
Law', International Review of the Red Cross, vol. 84, no. 847,
September 2002, at p. 568. He emphasizes that `civilian detainees
suspected of having committed a serious crime can and must be
put on trial.' Back
160
Jean S. Pictet (ed.), Commentary on Geneva Convention IV (Geneva:
ICRC, 1958), p. 51. Back
161
Pictet, Commentary IV, p. 45. Back
162
On the broad scope of application of common Article 3, see eg
Pictet, Commentary IV, pp. 36 and 40. Back
163
Articles 45 and 75 are among the many articles of 1977 Geneva
Protocol I that the US views as `either legally binding as customary
international law or acceptable practice though not legally binding.'
US Army, Operational Law Handbook (2002) (above, n. 13), ch. 2,
p. 5. Back
164
One of the few US publications to note the potential applicability
and value of Article 75 was Lee A. Casey, David Rivkin and Darin
R. Bartram, Detention and Treatment of Combatants in the War on
Terrorism, Federalist Society for Law & Public Policy Studies,
Washington DC, 2002. It was published in early 2002, before the
White House announcement of 7 February. The text can also be found
at http://www.fed-soc.org/. Back
165
Rumsfeld, News Briefing, 11 January 2002. http://www.defenselink.mil/news/Jan2002/briefings.html. Back
166
See eg Steven Erlanger, `Europeans Take Aim at U.S. on Detainees',
International Herald Tribune, London, 24 January 2002,
pp. 1 and 4. Back
167
See Thom Shanker and Katharine Q. Seelye, `Behind-the-Scenes
Clash Led Bush to Reverse Himself on Applying Geneva Conventions',
New York Times, 22 February 2002. Available at http://www.nytimes.com.
Back
168
Rumsfeld, News Briefing, 22 January 2002. http://www.defenselink.mil/news/Jan2002/briefings.html. Back
169
White House, Office of the Press Secretary, `Fact Sheet: Status
of Detainees at Guantanamo', 7 February 2002, p. 1. Back
170
Ibid., p. 2. The privileges cited are outlined in 1949 Geneva
Convention III, Articles 28, 60, 64-5 and 72. Back
171
Statement by the White House Press Secretary, Mr Ari Fleischer,
7 February 2002, pp. 1-2. Reiterated on p. 4. Back
172
Statement by Mr Fleischer, 7 February 2002, p. 4. Back
173
`Bush Decision on Detainees Fails to Satisfy Red Cross', International
Herald Tribune, London, 9-10 February 2002. See also ICRC,
Communication to the press No. 02/11 of 9 February 2002, available
at www.icrc.org. Back
174
ICRC, `Press Releases and Communications to the Press by the
ICRC: Former Yugoslavia, Federal Republic of Yugoslavia, Republic
of Croatia, Republic of Bosnia and Herzegovina, 2 July 1991-20
March 1998', bound collection of photocopied texts, Geneva, [1998?]. Back
175
See eg the article by the Executive Director of Human Rights
Watch, Kenneth Roth, `Bush Policy Endangers American and Allied
Troops', International Herald Tribune, Paris, 5 March 2002,
and various other statements on the Human Rights Watch website,
http://www.hrw.org. Also Amnesty International's long and detailed
`Memorandum to US Government on the Rights of People in US Custody
in Afghanistan and Guantanamo Bay', London, 15 April 2002, available
at the Amnesty International website, http://www.amnesty.org.uk. Back
176
1949 Geneva Convention III, Article 17. This rule does not mean
that a PoW cannot be asked other questions, nor does it prohibit
the PoW from providing other information. In March 2002 Jakob
Kellenberger, President of ICRC, pointed out that there was nothing
in humanitarian law to stop a prisoner being questioned, but that
he could not be forced to answer. `If he does not want to answer,
that is his right. Under any system, you cannot do anything to
people to make them speak. It is a non-issue.' Reuter report from
Geneva, `ICRC Rejects Talk of Geneva Conventions Review', 21 March
2002. Back
177
In a thorough and perceptive account of Camp Delta at Guantanamo
datelined 10 October 2002 Joseph Lelyveld suggests that it is
a holding camp for detainees most of whom are not likely to be
released or tried soon, and many of whom may be relatively minor
figures who were in the wrong place at the wrong time. Lelyveld,
`In Guantanamo', New York Review of Books, vol. xlix, no. 17,
7 November 2002, pp. 62-8. Back
178
1949 Geneva Convention III, Article 102. This appears to be the
relevant article of the Convention so far as trials for crimes
committed before capture are concerned. (The distinct subject
of PoW discipline issues is addressed in Article 82.) Pictet,
Commentary III (above, n. 82), pp. 406 and 470-1. Unfortunately
Pictet fails to consider pre-capture crimes other than war crimes.
Back
179
The normal appeal procedure for US armed forces is through the
appellate court of each service, then through the US Court of
Appeals for the Armed Forces, and then on to the Supreme Court. Back
180
President Franklin D. Roosevelt, Proclamation No. 2561 of 2 July
1942, `Denying Certain Enemies Access to the Courts of the United
States', Federal Register, vol. 7, issue of 7 July 1942, p. 5,103.
On this and other cases of US-established military commissions,
see the Congressional Research Service paper, Terrorism and the
Law of War: Trying Terrorists as War Criminals before Military
Commissions, updated 11 December 2001, Congressional Research
Service Order Code RL31191, Washington DC, 2001, pp. 18-26 and
46-8. Back
181
US Supreme Court Reports, book 87, case 317 (above, n. 89), p.
6. Back
182
President George W. Bush, Military Order of 13 November 2001,
`Detention, Treatment and Trial of Certain Non-Citizens in the
War Against Terrorism', Sections 1(e), 1(f), 3, and 4(b) and (c).
Federal Register, Washington DC, vol. 66, no. 222, 16 November
2001, p. 57,833. Text available at the Federal Register website,
http://www.access.gpo.gov/su-docs/aces/aces140.html. Back
183
For a useful exploration of these and other possibilities, see
David Scheffer, Options for Prosecuting International Terrorists,
United States Institute of Peace Special Report, Washington DC,
14 November 2001. Back
184
Statements by President's Counsel, Alberto Gonzalez, in an address
to an American Bar Association meeting, 30 November 2001, as cited
in American Society of International Law Newsletter, November-December
2001, p. 12. Back
185
Department of Defense, Military Commission Order No. 1, `Procedures
for Trials by Military Commissions of Certain Non-United States
Citizens In the War Against Terrorism', 21 March 2002. Text available
at http://www.defenselink.mil/news/Mar2002/releases.html. For
a response claiming that these procedures, if not per se violative
of international law, are highly problematic, see Jordan J. Paust,
`Antiterrorism Military Commissions: The Ad Hoc DOD Rules of Procedure',
Michigan Journal of International Law, vol. 23, no. 3, Spring
2002, pp. 677-94. Back
186
1977 Geneva Protocol I, Article 75(4)(j). The Pentagon's detailed
regulations provide for a post-trial Review Panel to which the
defence can make written submissions, not for a full-blown appeal
procedure. A further reservation about the regulations concerns
the role of the defence counsel, who would be excluded with the
accused from closed sessions, at which only an `assigned' defence
counsel would be present who would be forbidden to speak with
the co-counsel or the accused. Back
187
Ambassador Prosper speaking in London on 20 September 2002. Owen
Boycott, `Guantanamo Britons Still a Threat, says US', The
Guardian, London, 21 September 2002, p. 23. Back
188
Address by Pierre-Richard Prosper, US Ambassador for War Crimes
Issues, at the Royal Institute of International Affairs, London,
20 February 2002. Back
189
Reports of Ambassador Prosper's views by Kim Sengupta and Andrew
Buncombe in The Independent, London, 22 February 2002,
pp. 1 and 2. Back
190
Embassy of Switzerland, Washington DC, communication to US Department
of State and enclosed Information Note, 13 September 2002. Back
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